Cоlleen PRICE, Appellant-Defendant, v. STATE of Indiana, Appellee.
No. 49A02-9109-CR-378
Court of Appeals of Indiana, Second District
Sept. 14, 1992.
600 N.E.2d 103
Linley E. Pearson, Atty. Gen., Julie Zandstra Frazee, Deputy Atty. Gen., Indianapolis, for appellee.
SULLIVAN, Judge.
Appellant Colleen Price was convicted of Disorderly Conduct a Class B Misdemeanor,1 and Public Intoxication, a Class B Misdemeanor.2 Her appeal presents the following issues for our review:
- Whether the “unreasonable noise” prohibition of
I.C. 35-45-1-3(2) , Indiana‘s disorderly conduct statute, violates the First and Fourteenth Amendments of the United States Constitution upon grounds of vagueness or overbreadth; - Whether the “unreasonable noise” prohibition violates article I, section 9 of the Indiana Constitution; and
- Whether the evidence is sufficient to support the judgment upon the counts of Disorderly Conduct and Public Intoxication?
We affirm.
The facts most favorable to the judgment reveal that Officer Doug Cook of the Indianapolis Police Department was driving in the 1600 block of East Pleasant Street at 3:00 a.m. on January 1, 1991. He saw Price standing on the sidеwalk in front of a house, arguing with Eddie Coleman and Paula Brown. The three were yelling loud enough for Officer Cook to be able to hear them from his car.
Officer Cook approached the three and made inquiry about the occurrence. Coleman became abusive. Officer Cook told him to quiet down three times, but Coleman simply became more abusive. Officer Cook told Coleman he was under arrest, whereupon Coleman started to run. As Officer Cook started after him, Price grabbed his arm. When Cook broke free, Price grabbed the microphone cord of his police radio. Officer Cook jerked the cord from Price and chased Coleman.
Officer David A. Carver of the Indianapolis Police Department was driving by the scene just as Coleman ran away. Officer Carver pursued Coleman, caught him, and еffected the arrest. Price and Brown confronted the officers in an alley as they were bringing Coleman to the police car. They protested Coleman‘s arrest to the officers loudly and abusively, yelling and screaming. Officer Cook told Price to get out of the way and threatened her with arrest for disorderly conduct, to which she responded by yelling: “Fuck you. I haven‘t done anything.” Record at 84. Officer Cook asked Price to quiet down twice, but Price kept yelling. The altercation was loud enough to attract the attention of neighbors, who came out of their houses. Cook arrested Price.
Price had been at a New Year‘s Eve party at which beer had been served earlier in the evening. Coleman, Brown and Price were still in front of the house where the party had been when Officer Cook first drove by and spottеd them arguing. Price admitted drinking four or five glasses of beer earlier in the evening at the party. Officer Cook noticed that Price‘s speech was slurred, and that her breath had a strong odor of alcohol. Officer Cook opined that she was intoxicated.
Price asserts that the trial court erred in denying her motion to dismiss the Disorderly Conduct charge upon federal constitutional grounds. She argues that the “unreasonable noise” provision with which she was charged is vague and overbroad in violation of the First and Fourteenth Amendments.
“A person who recklessly, knowingly, or intentionally: . . .
(2) Makes unreasonable noise and continues to do so after being asked to stop; . . . commits disorderly conduct, a Class B misdemeanor.”
A.
Price first challenges the statute as overbroad. A defendant may challenge a statute facially upon оverbreadth grounds, whether or not the individual defendant‘s conduct is constitutionally protected. Osborne v. Ohio (1990) 495 U.S. 103, 103, n. 8, 110 S.Ct. 1691, 1697, n. 8, 109 L.Ed.2d 98. However, a statute is not overbroad merely because one might conceive of a single impermissible application. Id., 495 U.S. at 110, 110 S.Ct. at 1697; City of Houston, Texas v. Hill (1987) 482 U.S. 451, 458-60, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398. Rather, a statute is overbroad only if it prohibits a substantial amount of protected conduct. Osborne, supra; Hill, supra.
Authoritative constructions by state courts control the overbreadth analysis. Osborne, 495 U.S. at 103, 110 S.Ct. at 1691-92; Ward v. Rock Against Racism (1989) 491 U.S. 781, 795-96, 109 S.Ct. 2746, 2756, 105 L.Ed.2d 661. An opinion of an intermediate appellate court may be considered “authoritative” for purposes of constitutional analysis when it has received acceptance as the law over a period of time. Kolender v. Lawson (1983) 461 U.S. 352, 355, n. 4, 103 S.Ct. 1855, 1857, n. 4, 75 L.Ed.2d 903. In considering a constitutional challenge, Indiana courts accord a statute every reasonable presumption supporting its validity and place the burden upon the party challenging it to show unconstitutionality. Brady v. State (1991) Ind., 575 N.E.2d 981, 984.
Our Supreme Court interpreted the predecessor statute to
“Whoever shall act in a loud, boisterous or disorderly manner so as to disturb the peace and quiet of any neighborhood or family, by loud or unusual noise, or by tumultuous or offensive behavior, threatening, traducing, quarreling, challenging to fight or fighting, shall be deemed guilty of disorderly conduct. . . .” (Emphasis supplied.) I.C. 35-27-2-1 (Burns Code Ed.Supp.1972, § 10-1510). (For identical provision, see
I.C. 35-27-2-1 (Burns Code Ed.1975).)
In deciding the case, our Supreme Court held that the statute could not be applied to a person exercising his right to free speech unless the speech 1) was obscene, 2) consisted of fighting words, 3) amounted to a public nuisance, or 4) incited imminent lawless action, citing the relevant United States Supreme Court cases holding speech in these particular categories to be unprotected by the First Amendment. Although the United States Supremе Court reversed the Hess decision, it did not question Indiana‘s analysis of speech in terms of these separate categories. Rather, the Court held that the Indiana courts erred in holding the statement Hess had made to be fighting words. Hess v. Indiana, supra, 414 U.S. at 106-10, 94 S.Ct. at 328-29.
This court has interpreted
Although these cases have consistently included obscenity in listing the categories of unprotected speech, we have found no Indiana case which upholds a conviction for obscenity under
Model Penal Code § 250.2, approved by the American Law Institute in 1962, provides in relevant part:
“(1) A person is guilty of disorderly conduct if . . . he:
(b) makes unreasonable noise or offensively coarse utteranсe, gesture or display, or addresses abusive language to any person present.” (Emphasis supplied).
The Model Penal Code Commentary, supra, § 250.2, at 334, describes the emphasized language as follows:
“As compared to other formulations, the Model Code phrase ‘offensively coarse’ has two chief virtues. First, it makes plain the inclusion of scatology as well as obscenity. Second, it requires that the speech in question be offensive and not an expression which, although ‘indecent’ or ‘profane,’ has become widely acceptable.” (Emphasis supplied.)
The Legislature amended the disorderly conduct statute to its present form in 1976. In any event, we would be neglecting our duty to construe statutes as constitutional when reasonably possible if we were to rely upon this minor change in the statutory language to conclude that the revised statutе is more broad than the old one and therefore unconstitutional.
To the extent that the “unreasonable noise” provision of
B.
Price next challenges the statute upon grounds of vagueness. Although there has been some controversy upon the subject, it appears that a defendant may make a facial attack upon vagueness grounds where the statute reaches a substantial amount of constitutionally protected conduct, even when the statute clearly prohibits the defendant‘s conduct. Kolender, supra, 461 U.S. at 358, n. 8, 103 S.Ct. at 1859, n. 8; but see id., 461 U.S. at 367-71, 103 S.Ct. at 1864-65 (White, dissenting). The vagueness doctrine requires that a penal statute define the criminal offense with sufficient clarity and definiteness that ordinary people may reasonably understand what conduct is prohibited. The statute
Several courts have held disorderly conduct statutes to be unconstitutionally vague. Most of those cases, however, have interpreted statutory language which differs or is totally dissimilar, from the “unreasonable noise” provision of
On the other hand, the clear majority trend has recognized that “unreasonable noise” provisions which are construed only to prohibit unprotected speech are not unconstitutionally vague. See State v. Anonymous (1972-4) 6 Conn.Cir. 667, 298 A.2d 52, 54; State v. Marker (1975) 21 Or.App. 671, 535 P.2d 1273, 1276-77; People v. Fitzgerald (1978) 194 Colo. 415, 573 P.2d 100, 103; Commonwealth v. Mastrangelo (1980) 489 Pa. 254, 414 A.2d 54, 58, appeal dismissed; People v. Bakolas (1983) 59 N.Y.2d 51, 462 N.Y.S.2d 844, 449 N.E.2d 738, 740; Blanco v. State (1988) Tex.Ct.App., 761 S.W.2d 38, 40-41; Eanes v. State (1990) 318 Md. 436, 569 A.2d 604, 616, cert. denied; Earley v. State (1990) Alaska Ct.App., 789 P.2d 374, 376; City of Madison v. Baumann (1991) 162 Wis.2d 660, 470 N.W.2d 296, 302. In this regard, several courts have explicitly concluded that the word “reasonable” does not present vagueness problems. Baumann, supra; City of Seattle v. Eze (1988) 111 Wash.2d 22, 759 P.2d 366, 370; People v. Raby (1968) 40 Ill.2d 392, 240 N.E.2d 595, 598, cert. denied; see also, Cameron v. Johnson (1968) 390 U.S. 611, 615-17, 88 S.Ct. 1335, 1338, 20 L.Ed.2d 182.
Our research has revealed only two cases which have held “unreasonable noise” provisions to be unconstitutionally vague and overbroad. In Marks v. City of Anchorage (1972) Alaska, 500 P.2d 644, the language appeared in an Anchorage city ordinance. The Alaska Supreme Court refused to construe the language narrowly to overcome the facial challenge. In so doing, however, the court noted that no such limiting construction of the ordinance was requested because the City had chosen to not make an appearance in the action, and therefore, such limiting construction would not be considered. Id. at 657. It may be noted that Marks was decided in 1972, at which time the great majority of the cases voiding disorderly conduct statutes for vagueness had been only recently decided.
An “unreasonable noise” provision was also declared unconstitutionally vague by a federal district court in Langford v. City of Omaha (1989) D.Neb., 755 F.Supp. 1460, 1463. That decision is unconvincing. It does not refer to the nine cases holding the same language constitutional, and cites only Pritikin, supra, and Original Fayette County Civic & Welfare League, supra, in support of its conclusion. As noted above, however, those cases interpreted “loud or unusual noise” and “improper
The “unreasonable noise” provision of
“[The vagueness doctrine] is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.”
In addition to putting persons on notice as to what conduct is proscribed under a statute, the vagueness doctrine requires that the statute establish minimal guidelines to govern law enforcement officers because a failure to provide such guidance “may permit ‘a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.‘” Kolender, supra, 461 U.S. at 358, 103 S.Ct. at 1858, quoting Smith v. Goguen (1974) 415 U.S. 566, 574-76, 94 S.Ct. 1242,
1248, 39 L.Ed.2d 605. Kolender opined that that the problem of unguided police discretion is the more important aspect of the vagueness doctrine. Kolender, supra, 461 U.S. at 358, 103 S.Ct. at 1858. Indeed, the problem is exacerbated when the police officer is both the victim and the judge of verbal abuse, and the Supreme Court has consistently invalidated laws giving the police overly broad discretion to arrest individuals for words or conduсt that merely annoy or offend them. See, e.g., Kolender, supra, 461 U.S. at 358-62, 103 S.Ct. at 1858-60; Smith, supra, 415 U.S. at 574-76, 94 S.Ct. at 1248; Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 169-70, 92 S.Ct. 839, 847, 31 L.Ed.2d 110.
In the Model Penal Code Commentary, supra, § 250.2, at 349-54, the drafters elaborated upon the problems presented by this particular situation. In such a case, the officer‘s decision to arrest has the character of a final disposition in many respects. As noted by the drafters:
“The arrest itself is a sanction. Conviction is quite likely to follow arrest if the officer presses the matter, since even the more carefully drafted disorderly conduct statute leaves considerable room for interpretation and the magistrate is likely to be sympathetic with the police version of the facts.” Model Penal Code Commentary, supra, § 250.2, at 350.
In addition, a conviction based upon the word of a single officer will withstand attack upon appeal under our modern standard of review for the sufficiency of the evidence. Seе Humphries v. State (1991) 4th Dist. Ind.App., 568 N.E.2d 1033. Notwithstanding these considerations, the cases entertaining vagueness challenges do not discuss these problems in any detail.
We note initially that merely arguing with a policeman is not disorderly conduct. Thompson v. City of Louisville (1960) 362 U.S. 199, 205-06, 80 S.Ct. 624, 628-29, 4 L.Ed.2d 654; Humphries, supra, at 1036. In addition, we recognize that a properly trained police officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and to be less likely to respond belligerently to “fighting words“. Hill, supra, 482 U.S. at 462-63, 107 S.Ct. at 2510; Lewis v. City of New Orleans (1974) 415 U.S. 130, 134-36, 94 S.Ct. 970, 973, 39 L.Ed.2d 214 (Powell J., concurring); see also Evans v. State (1982) 1st Dist. Ind.App., 434 N.E.2d 940, 943, n. 2. This is particularly the case inasmuch as the police officer‘s official duties are especially likely to involve him in volatile and hostile situations.
We acknowledge that it is possible to read the Indiana cases upholding convictions under the disorderly conduct statute as inconsistent with this conclusion. However, most of the cases admit of facts which bring them within the principles earlier enunciated, even though the courts did not focus explicitly upon them. For example, in both Mesarosh, supra, 459 N.E.2d at 426 and Brown, 576 N.E.2d at 606, the defendants’ protests attracted the attention of people in the vicinity of the scene. In Brittain, supra, 565 N.E.2d at 758, the defendant‘s protest was “loud enough to be heard outside the trailer” where the incident took place. And in Gilles, supra, 531 N.E.2d 220, the “fighting words” were directed at a crowd rather than at police officers.
The only cases which appear to be squarely contrary to our holding are Robinson, supra, 588 N.E.2d 533, and Gamble, supra, 591 N.E.2d 142. The opinions in those cases state that the defendant “screamed” profanities at the police officer and screamed profanities “at the top of his lungs“, respectively. The Robinson court held that directing profanities at a police officer constituted fighting words without regard to whether the words were intended or likely to result in a breach of the peace, or that the screaming in any way constituted a nuisance to the public under the circumstances. Instead, the court concluded that personal epithets and verbal abuse do not enjoy constitutional protection, noting that “[i]t is a sad commentary of оur modern society that law enforcement officers must be subjected to insults such as those used in the present case.” Robinson, supra, 588 N.E.2d at 535, quoting Mesarosh, supra, 459 N.E.2d at 430. The Gamble court simply concluded that the defendant‘s profane statements were undeserving of constitutional protection, citing, inter alia, Robinson, 591 N.E.2d at 144.
“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. . . . [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Hill, supra, 482 U.S. at 461, 107 S.Ct. at 2509, quoting Terminiello v. Chicago (1949) 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131. See also Cohen v. California (1971) 403 U.S. 15, 20, 21, 91 S.Ct. 1780, 1785.
As so construed, we conclude that the “unreasonable noise” language of the statute does not vest the police with unwarranted discretion to suppress speech protected by the First Amendment. The statute therefore is not unconstitutionally vague.
Price suggests in her brief that police do in fact exercise discretion under the statute to charge people “who object to the manner in which the officers are conducting themselves in the course of an investigation, traffic stops or the like.” Brief of Appellant at 19-20. In effect, Price accuses the police of using the statute in bad faith to prevent people from exercising their right to free speech. There is no cognizable evidence in this case to support that assertion. We accordingly reject the suggestion as a basis for reversal of these convictions.10
In light of the foregoing discussion, we conclude that the “unreasonable noise” prohibition of
Price next challenges
In interpreting particular provisions of the Indiana Constitution, we search for the common understanding of both those who framed it and those who ratified it. Bayh v. Sonnenburg (1991) Ind., 573 N.E.2d 398, 412. This search is guided by the history, purpose, and case law surrounding the provision, State Election Board v. Bayh (1988) Ind., 521 N.E.2d 1313, 1316. However, the analysis must be controlled by a fair reading of the text itself.
Article I, section 9 states:
“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.” (Emphasis supplied.) (Burns Code Ed.1990).
This language clearly focuses upon the content of the speech, protecting the right to speak without having particular opinions censored. Indeed, the language “right to speak . . . freely . . . on any subject whatever“, taken upon its face, could be read to suggest that the State is without power to impose content-based limitations upon speech. That argument, however, was rejected in Fordyce v. State (1991) 2d Dist. Ind.App., 569 N.E.2d 357.
In Fordyce, this court addressed the question whether Indiana‘s obscenity statute, which was held to be consistent with the First Amendment of the United States Constitution, violated article I, section 9 of the Indiana Constitution. In support of his argument, the appellant cited State v. Henry (1987) 302 Or. 510, 732 P.2d 9. The Oregon Constitution was modeled upon Indiana‘s and its free speech provision is identical. In Henry, the Oregon Supreme Court held that its free speech provision protected all speech without regard to content, and therefore, that obscene speech, although subject to regulation like any other speech, was entitled to the same protection under the Oregon Constitution as any other message. Id., 732 P.2d at 18.
The Fordyce court rejected this invitation to hold broadly, in reliance upon Henry, that article I, section 9 protects all speech which is unprotected by the First Amendment. In considering obscene speech in particular, the court noted the prevalence of proscriptions upon obscenity at the time of the constitutional convention, and concluded that the framers would have assumed that obscenity was beyond the protection of the constitutional provision. Fordyce, supra, at 361-62.
Fordyce stands for the proposition that some categories of speech, including content-based categories, may be prohibited consistent with article I, section 9. This proposition gains support from the language “but for the abuse of that right, every person shall be rеsponsible“, which clearly contemplates the possibility that a person may abuse the right and subject himself to legal sanctions. Indeed, our Supreme Court has held that any alleged impingement upon article I, section 9 must be weighed in the balance against the public health, welfare and safety served, Johnson v. St. Vincent Hospital, Inc. (1980) 273 Ind. 374, 404 N.E.2d 585, 605, implying that the values expressed in the first portion of the constitutional provision are not absolute. Thus, the issue before us is whether the particular categories of speech prohibited by the “unreasonable noise” provision of
We note at the outset that the 1850 Constitution became effective November 1, 1851, and provided that “[a]ll laws now in force, and not inconsistent with this Constitution, shall remain in force until they shall expire or be repealed.” Indiana Constitution Schedule, reprinted in 1852-53-55 Ind. Laws at 27 (Chapman 1852). The Act creаting Chapter 6 of Part Third of the Indiana statutes, which defined and prescribed punishment for misdemeanors, was approved June 14, 1852. [1852] 2 Ind.Statutes 361. Many, if not most, of the statu-
Chapter 6 made challenging a person to fight a duel a misdemeanor. 2 Ind.Statutes at 424 (section 1), codifying the holding of State v. Perkins (1841) Ind., 6 Blackf. 20. That offense, like the use of fighting words, consisted of speech which was intended to evoke a violent response. In light of the pre-existing common law upon the subject and the codification of the crime of challenging to fight a duel shortly after the 1850 Constitution‘s effective date, it does not appear that the framers and ratifiers of the Constitution intended to put speech akin to “fighting words” beyond the power of the Legislature to proscribe.
In addition, the “fighting words” doctrine itself has long been an accepted part of Indiana law, notwithstanding the difficulties we have experienced in its application. Our Supreme Court applied it in Hess, and this court has applied it on numerous occasions, as discussed above. We presume that our Supreme Court would have recognized the applicability of article I, section 9 to the “fighting words” analysis if it believed any existed. We conclude, therefore, that article I, section 9 of the Indiana Constitution does not protect “fighting words“.
The “inciting imminent lawless action” doctrine also has its counterpart in the 1852 Act creating Chapter 6 of the criminal code. That chapter prohibited rioting. 2 Ind.Statutes at 425 (section 4). The common law had long recognized that encouraging or promoting a riot, “whether by words, signs or gestures, or by wearing the badge or ensign of the rioters” was sufficient to convict a person of rioting, even where the defendant had not personally engaged in violent acts. Clifford, Esq. v. Brandon (1809) 2 Campb. 358, 370; see also Rex v. Royce (1767) 4 Burr 2073; King v. Hunt (1754) 1 Kenyon‘s Rep. 108. The footnote to the statutory section prohibiting rioting dutifully reports these cases and their holdings, suggesting that the rioting statute was to be interpreted in light of these common law precedents. See 2 Ind.Statutes at 425-26 (footnote accompanying section 4). This evidence makes it unlikely that the drafters and ratifiers of the Indiana Constitution intended to put speech inciting imminent lawless action beyond the authority of the Legislature to proscribe.
Our Supreme Court recognized and applied the modern statement of the “inciting imminent lawless action” doctrine in Hess and again in New, supra. Thus, the historical and modern evidence suggests that speech falling into this category also fаlls outside the protections of article I, section 9 of our Constitution.
Finally, we address the public nuisance limitation upon speech. The 1852 Act prohibited public nuisances, 2 Ind.Statutes at 428-29 (sections 8-10), disturbing religious meetings, 2 Ind.Statutes at 437 (section 37), and obstructing highways. 2 Ind.Statutes at 444 (section 66). The available case law and the drafting of the statutory sections suggest that the public nuisance prohibitions were primarily understood to punish persons who operated places in which public disorder was encouraged, e.g., drinking, carousing, swearing and the like. See State v. Bertheol (1843) Ind., 6 Blackf. 474; State v. Mullikin (1846) Ind., 8 Blackf. 260. However, both the statute and the case law cite to the common law for the proposition that the prohibition against public nuisances also encompassed “making great noises at night.” See 2 Ind.Statutes at 428; Bertheol, supra, at 475, citing Rex v. Smith (1726) 93 Eng.Rep. 795, 2 Strange 704.
It may also be noted that the public nuisance category, while not invоlving “imminent violence” or “imminent breach of the peace“, does carry with it the climate of public disorder. Thus in Keefer v. State (1910) 174 Ind. 588, 92 N.E. 656, blasting in a stone quarry which threw rocks and debris upon surrounding land resulted in affirmance of a public nuisance conviction. The holding was in large measure prompted by a definition of nuisance cast in terms of injury to health, offense to the senses or anything that interferes with the free “enjoyment of life or property“. 174 Ind. at 589, 92 N.E. 656.
In light of the foregoing discussion, we conclude that
III.
Price next challenges the sufficiency of the evidence. Price first challenges the sufficiency upon the charge of Disorderly Conduct.
“A person who recklessly, knowingly, or intentionally: . . .
(2) Makes unreasonable noise and continues to do so after being asked to stop; . . . commits disorderly conduct, a Class B misdemeanor.”
The determination whether the defendant acted knowingly or intentionally is a matter to be determined by the trier of fact. Gee v. State (1988) Ind., 526 N.E.2d 1152, 1152, 1154; McCaffrey v. State (1988) 2d Dist. Ind.App., 523 N.E.2d 435, 435, 436. In determining the existence of the requisite degree of mental culpability, the jury may, indeed often must, rely upon reasonable inferences drawn from consideration of the circumstances surrounding the offense. McCaffrey, supra, at 437.
The facts most favorable to the judgment are that in protesting Coleman‘s arrest, Price yelled, screamed, and got in the officers’ way. Officer Cook twice asked her to quiet down; however, Price continued to scream loud enough to attract the attention of the neighbors, and drew them from their houses at 3:00 a.m.
The trier of fact could have reasonably concluded from Price‘s continued yelling, notwithstanding Officer Cook‘s admonitions, that Price intended to cause a loud disturbance. Furthermore, it could have concluded that the volume level of her protest was unreasonable in light of the time of day and the residential surroundings (thus bringing the “unreasonable noise” within the public nuisance category of unprotected speech).11 Finally, the evidence indicated that Price continued to yell and scrеam after being asked to stop. The evidence was sufficient to sustain the conviction for Disorderly Conduct.
Price next challenges the sufficiency of the evidence upon the charge of Public Intoxication.
“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.”
Price asserts that the evidence was insufficient to prove either that she was in a public place or that she was intoxicated.
A “public place“, as the term is used in the Public Intoxication statute, is a place open to common and general use, participation and enjoyment; a place accessible to the public. Martin, supra, 499 N.E.2d at 276; see State v. Baysinger
The evidence most favorable to the judgment is that Price was on a concrete sidewalk going up to a house, off the main sidewalk on the 1600 block of East Pleasant Street when Officer Cook confronted Coleman, Brown and her. During the course of the altercation that followed, the four of them walked out onto the main sidewalk on Pleasant Street. Coleman eventually fled and was apprehended on the 1600 block of East Lexington, one block north and approximately 100 yards west of the spot where the initial altercation took place. The police were leading Coleman back to the police cars through an alley when Price confronted them again, having entered the alley from the 1600 block of Lexington.
The evidence thаt Price was on the private sidewalk leading to the house off the main sidewalk on the 1600 block of East Pleasant is, of itself, insufficient to conclude that Price was in a public place. However, the evidence revealed that Price was also on the main sidewalk during the course of the initial confrontation with Officer Cook. In addition, the trier of fact was reasonably entitled to infer that Price crossed a public sidewalk and street when she ran from 1600 East Pleasant to the alley of 1600 East Lexington. Because public sidewalks and streets are places where the public has a right to be and are generally accessible for public use, we conclude that they are “public places” within the meaning of the statute. Therefore, the evidence is sufficient to conclude that Price was in a public place.12
With respect to the sufficiency of the evidence upon the element of intoxication, it is established that a non-expert witness may offer an opinion upon intoxication, and a conviction may be sustained upon the sole testimony of the arresting officer. Atkins, supra, 451 N.E.2d at 57.
Officer Cook testified that Price‘s words were slurred and that she had a strong odor of alcohol upon her breath. Price admitted drinking beer earlier that evening. In addition, Officer Cook opined that Price was intoxicated. This evidence is sufficient to sustain the judgment upon the element of intoxication, and therefore, upon the conviction for Public Intoxication.
We uphold the constitutionality of
The judgment of the trial court is affirmed.
HOFFMAN, J., concurs.
SHIELDS, J., concurs with separate opinion.
SHIELDS, Judge, concurring.
I concur in the majority decision to the extent that it holds
I concur in the majority decision to the extent that it holds the statute in question is not unconstitutionally vague following the majority trend which holds that an “unreasonable noise” provision which is construed to prohibit only unprotected speech, as is the statute in question, is not unconstitutionally vague.
I fully concur in the majority‘s resolution of the Indiana constitutional challenge and in its determination that the evidence is sufficient to sustain Price‘s convictions.
Notes
Also, in its third footnote, the majority assumes