MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Dec 05 2018, 6:29 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Dale W. Arnett                                          Curtis T. Hill, Jr.
Winchester, Indiana                                     Attorney General of Indiana
                                                        Kelly A. Loy
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Daniel W. McCarty,                                      December 5, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1166
        v.                                              Appeal from the Randolph
                                                        Superior Court
State of Indiana,                                       The Honorable Peter D. Haviza,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        68D01-1404-FD-202



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1166 | December 5, 2018                 Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Daniel McCarty (McCarty), appeals his conviction for

      intimidation, a Class D felony, Ind. Code § 35-45-2-1(a)(2) (2013); and public

      intoxication, a Class B misdemeanor, I.C. § 7.1-5-1-3.


[2]   We affirm.


                                                   ISSUE
[3]   McCarty presents one issue on appeal, which we restate as: Whether the trial

      court abused its discretion in admitting certain evidence.


                      FACTS AND PROCEDURAL HISTORY
[4]   On April 12, 2014, shortly before 1:00 a.m., Tammy Clemons (Clemons), an

      off-duty 9-1-1 dispatcher, was driving home. Clemons stopped at a stop sign at

      the intersection of South Columbia and Chestnut roads in Union City, Indiana.

      (Transcript Vol. II, p. 77). During the stop, Clemons saw two men walking on

      the sidewalk. One of the men, who was wearing a red shirt and who was later

      identified as McCarty, was staggering and falling into the roadway. She

      observed the other man helping McCarty get back on the sidewalk.

      Immediately, Clemons contacted Officer Jerry Hammons (Officer Hammons)

      of the Union City Police Department and reported the incident. After giving a

      description of the men, Clemons further reported that the men were walking

      toward “Pak-A-Sak,” a gas station convenience store. (Tr. Vol. II, p. 78).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1166 | December 5, 2018   Page 2 of 7
[5]   Wendy Schweizer (Schweizer), the Pak-A-Sak store clerk who was working

      that night, saw two men enter the store. Schweizer observed that McCarty was

      “obviously stumbling around and mumbling and not in the right state of mind.”

      (Tr. Vol. II, p. 89). Schweizer “pretty quickly” formed the opinion that

      McCarty was “drunk.” (Tr. Vol. II, p. 91). Having had unpleasant encounters

      in the past with drunk patrons, Schweizer felt “scared” being in the presence of

      McCarty. (Tr. Vol. II, p. 92).


[6]   Moments later, Officer Hammons and Officer Lance Mock (Officer Mock),

      arrived at the Pak-A-Sak store. From outside, the officers could hear McCarty

      loudly mumbling, and they could see that he was unsteady on his feet and

      weaving through the aisles. Schweizer waved, and the officers believed that

      McCarty was “causing a problem inside” the store. (Tr. Vol. II, p. 140). At

      that point, the officers “decided to intervene and made contact with” McCarty.

      (Tr. Vol. II, p. 140). When Officer Hammons approached McCarty and asked

      McCarty how he was doing, McCarty loudly retorted, “fuck you.” (Tr. Vol. II,

      p. 140). Officer Hammons, who was about “two or three steps away from”

      McCarty, smelled a strong odor of alcohol emanating from McCarty. (Tr. Vol.

      II, p. 22). Officer Hammons formed an opinion that McCarty was intoxicated.

      Similarly, Officer Mock believed that McCarty was intoxicated since McCarty

      was unsteady on his feet.


[7]   Officer Hammons asked McCarty for his identification, but McCarty refused.

      At that moment, Officer Hammons informed McCarty that he was arresting

      him for public intoxication. Officer Hammons thereafter asked McCarty to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1166 | December 5, 2018   Page 3 of 7
       turn around and put his hands behind his back. At first, McCarty complied, but

       he jerked his left arm and freed himself. After a brief struggle, the officers

       successfully handcuffed McCarty. As the officers escorted McCarty out of the

       store, McCarty was swearing loudly at the officers.


[8]    On the way to jail, McCarty calmly asked Officer Hammons whether he had

       any children, and Officer Hammons told McCarty that he did not have any.

       McCarty proceeded to hurl threats at Officer Hammons by stating, “good,

       cause when I get out of jail I’m blowing your head off and if you had kids they

       were going to die.” (Appellant’s App. Vol. II, p. 152). Officer Hammons was

       “deathly scared” by McCarty’s threat. (Tr. Vol. II, p. 142).


[9]    On May 13, 2014, the State filed an Information, charging McCarty with Class

       D felony intimidation and Class B misdemeanor public intoxication. On

       September 11, 2014, McCarty filed a motion to suppress, claiming that the

       police “encounter and arrest” violated both the United States and Indiana

       Constitutions. (Appellant’s App. Vol. II, p.144). Specifically, McCarty alleged

       that “[A]ny evidence obtained as a result of the illegal encounter and

       investigation by the police, including any statement by [McCarty] should be

       suppressed.” (Appellant’s App. Vol. II, p.144). On May 18, 2015, following a

       hearing, the trial court denied McCarty’s motion to suppress.


[10]   On September 27, 2017, a jury trial was conducted. During the hearing,

       McCarty renewed his motion to suppress and made a continuing objection.

       The trial court maintained its denial but noted McCarty’s objection. At the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1166 | December 5, 2018   Page 4 of 7
       close of the jury trial, McCarty was found guilty as charged. On April 18, 2018,

       the trial court conducted McCarty’s sentencing hearing and sentenced him to

       serve concurrent terms of two years on the intimidation conviction, and 180

       days on the public intoxication conviction.


[11]   McCarty now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[12]   McCarty argues that the officers did not have probable cause to arrest him for

       public intoxication. As a result, the threats he made to Officer Hammons on

       his way to jail should not have been admitted into evidence.


[13]   In resolving this issue, we initially observe that the admissibility of evidence is

       within the sound discretion of the trial court. Moffitt v. State, 817 N.E.2d 239,

       245 (Ind. Ct. App. 2004). We will reverse a trial court’s decision regarding the

       admission of evidence only for an abuse of discretion. Flake v. State, 767

       N.E.2d 1004, 1009 (Ind. Ct. App. 2002). An abuse of discretion occurs when

       the trial court’s action is clearly erroneous and against the logic and effect of the

       facts and circumstances before the court. Id.


[14]   Indiana Code section 7.1-5-1-3(a) provides, in relevant part, that it is a Class B

       misdemeanor for a person to be in a public place in a state of intoxication

       caused by the person’s use of alcohol 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. McCarty maintains that there was no reason for Officer
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1166 | December 5, 2018   Page 5 of 7
       Hammons to believe that McCarty’s conduct fell within one of those categories.

       The State, however, maintains that the evidence shows that Officer Hammons

       had probable cause that McCarty committed public intoxication.


[15]   Probable cause for an arrest exists when the facts and circumstances known to

       the officer would warrant a reasonably prudent person to believe that the

       arrestee has committed the criminal act in question. Jellison v. State, 656 N.E.2d

       532, 534 (Ind. Ct. App. 1995). The level of proof necessary to establish

       probable cause is less than that necessary to establish guilt beyond a reasonable

       doubt. Id. Probable cause, in fact, requires only a fair probability of criminal

       activity, not a prima facie showing. Id.


[16]   Clemons testified that on the night in question, she saw McCarty staggering and

       falling into the roadway. Based on her observations, Clemons called Officer

       Hammons directly on his cellphone and gave a description of McCarty, and

       informed the officer that McCarty was walking toward the Pak-A-Sak

       convenience store. The attending store clerk, Schweizer, observed that

       McCarty had “slurred speech, [and was] obviously not walking right.” (Tr.

       Vol. II, p. 90). Schweizer formed the opinion that McCarty “was drunk.” (Tr.

       Vol. II, p. 91). Schweizer stated that she “felt” scared being all “alone . . . at

       the gas station with somebody [that was] intoxicated.” (Tr. Vol. II, p. 92).


[17]   Officer Hammons testified that upon meeting McCarty, he observed that

       McCarty was “struggling to stand [and] was very uneasy on his feet.” (Tr. Vol.

       II, p. 142). Officer Hammons further stated that McCarty reeked of alcohol.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1166 | December 5, 2018   Page 6 of 7
       While Officer Mock testified that he did not smell alcohol from McCarty’s

       mouth, he stated that McCarty was “very unsteady on his feet” and was

       “apparently intoxicated.” (Tr. Vol. II, p. 112). Officer Mock added that

       Schweizer appeared “agitated” by McCarty’s conduct at the store. (Tr. Vol. II,

       p. 112).


[18]   In our view, the above evidence provided the officers with probable cause to

       arrest McCarty for public intoxication. See Hampton v. State, 468 N.E.2d 1077,

       1079 (Ind. Ct. App. 1984) (observing that police officers had probable cause to

       arrest the defendant for public intoxication when the evidence established that

       the defendant was unstable on his feet and smelled of alcohol). Because there

       was probable cause to arrest McCarty for public intoxication, the trial court did

       not abuse its discretion in admitting evidence of McCarty’s threat to Officer

       Hammons. Accordingly, we affirm McCarty’s convictions.


                                             CONCLUSION
[19]   Based on the foregoing, we hold that there was probable cause to arrest

       McCarty for public intoxication, thus the trial court did not abuse its discretion

       in admitting McCarty’s threat to Officer Hammons.


[20]   Affirmed.


[21]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1166 | December 5, 2018   Page 7 of 7
