                                                                                  FILED
                                                                              Nov 29 2017, 9:05 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Justin B. Mills                                           Curtis T. Hill, Jr.
Mills Law Office                                          Attorney General of Indiana
Marengo, Indiana                                          Caryn N. Szyper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Alan Ruiz,                                                November 29, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          10A05-1702-CR-311
        v.                                                Appeal from the Clark Circuit
                                                          Court
State of Indiana,                                         The Honorable Joseph P. Weber,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          10C03-1605-CM-1130



Pyle, Judge.




Court of Appeals of Indiana | Opinion 10A05-1702-CR-311 | November 29, 2017                 Page 1 of 14
                                         Statement of the Case
[1]   Alan Ruiz (“Ruiz”) appeals his conviction, following a bench trial, for Class B

      misdemeanor public intoxication.1 Ruiz argues that there was insufficient

      evidence to support his conviction. Because the evidence and reasonable

      inferences show that Ruiz was intoxicated in a public place and in imminent

      danger of breaching the peace, we affirm his conviction.


[2]   We affirm.2


                                                       Issue
                        Whether sufficient evidence supports Ruiz’s conviction.


                                                       Facts
[3]   The facts most favorable to the judgment reveal that, during the morning hours

      of May 6, 2016, Ruiz and some friends, who all lived in the King Solomon

      apartments (“the apartments”) in Clark County, were drinking alcohol while

      sitting at some picnic tables at a Rally’s restaurant that was adjacent to the

      apartments. That day, within a two-hour window of time, officers from the




      1
          IND. CODE § 7.1-5-1-3.
      2
        We note that the “Judgment of Conviction and Sentence” order, dated January 9, 2017, contained in Ruiz’s
      Appellant’s Appendix suggests that Ruiz pled guilty to Class B misdemeanor public intoxication pursuant to
      a plea agreement. (App. Vol. 2 at 8). However, the transcript of the January 9, 2017 bench trial and the
      chronological case summary entry for January 9 confirm that Ruiz was found guilty of the charge after a
      bench trial. We remand to the trial court to correct its written order to correctly reflect that judgment of
      conviction was entered pursuant to a guilty verdict following a bench trial.

      Court of Appeals of Indiana | Opinion 10A05-1702-CR-311 | November 29, 2017                    Page 2 of 14
      Jefferson Police Department were dispatched to the apartments on three

      separate occasions for complaints regarding Ruiz.


[4]   The first dispatch occurred at 1:17 p.m. and the complaint was that the “subject

      was yelling racial slurs at the caller” and “drinking vodka in the grass area at

      Rally’s.” (Tr. Vol. 2 at 31). The responding officers told Ruiz that he was “not

      allowed to be outside” and instructed him to go to and remain in his apartment.

      (Tr. Vol. 2 at 27).


[5]   The second dispatch call occurred, twenty-two minutes later, at 1:39 p.m. The

      complaint for this second call was that an “intoxicated subject” was in the

      hallway “causing a disturbance[.]” (Tr. Vol. 2 at 31). The responding officers

      “advised [Ruiz] to stay in his apartment” and warned him that “if they received

      another call that he would be incarcerated.” (Tr. Vol. 2 at 31).


[6]   The third dispatch call occurred two hours later, at approximately 3:40 p.m.,

      and this dispatch call was based on a complaint that an “intoxicated male

      subject” had been “creating a disturbance with some residents nearby there.”

      (Tr. Vol. 2 at 9). Officer Alyssa Wright (“Officer Wright”), who responded to

      the call, was aware that this was the third dispatch to the apartment complex

      for complaints about Ruiz. Officer Wright had been given a specific description

      of the suspect and was informed that he was walking in a grassy area near the

      apartments and the Rally’s restaurant.


[7]   When Officer Wright arrived at the scene, she saw Ruiz walking in the grass

      near the Rally’s and noticed that he was “swaying back and forth” and having

      Court of Appeals of Indiana | Opinion 10A05-1702-CR-311 | November 29, 2017   Page 3 of 14
       “a lot of trouble keeping his balance.” (Tr. Vol. 2 at 10). A few of the

       apartment residents, who were approximately two hundred feet away from

       Ruiz, pointed toward Ruiz and yelled to inform the officer that “that was the

       guy[,]” who had “yell[ed] obscene things in their direction and to them.” (Tr.

       Vol. 2 at 13). In response to the residents’ pointing, Ruiz “start[ed] yelling at

       them.” (Tr. Vol. 2 at 14).


[8]    When Officer Wright approached Ruiz to speak to him, she saw that he had

       “extremely red, glassy . . . blood shot eyes” and noticed that his “speech was

       extremely slow and slurred.” (Tr. Vol. 2 at 10). She also noticed that Ruiz

       smelled of an alcoholic beverage and that he had a pint-sized bottle of vodka in

       his jeans pocket. Officer Wright gave Ruiz a portable breath test. Ruiz initially

       refused to give the officer his name. He was “furious” and had a “little

       attitude” with her. (Tr. Vol. 2 at 28, 29). Based on Ruiz’s intoxication and the

       circumstances, including the “first shift officers having gone out on him twice . .

       . just two hours prior to [her dispatch] call[,]” Officer Wright ultimately arrested

       him. (Tr. Vol. 2 at 13).


[9]    The State charged Ruiz with Class B misdemeanor public intoxication. The

       charging information alleged, in relevant part, that Ruiz had “either breached

       the peace or was in imminent danger of breaching the peace” under INDIANA

       CODE § 7.1-5-1-3(a)(3). (App. Vol. 2 at 7).


[10]   On January 9, 2017, the trial court held a bench trial. The State presented

       testimony from Officer Wright, who focused mainly on the facts regarding


       Court of Appeals of Indiana | Opinion 10A05-1702-CR-311 | November 29, 2017   Page 4 of 14
       Ruiz’s actions during the third dispatch to the apartments. After the State’s

       presentation of evidence, Ruiz moved for an involuntary dismissal.3 Ruiz

       argued that the officer’s testimony that she saw Ruiz yelling at the residents

       who had been pointing him out and her lack of testimony as to how long he

       yelled did not rise to the level of a breach of the peace. The trial court denied

       Ruiz’s motion.


[11]   Thereafter, Ruiz testified on his own behalf. Ruiz acknowledged that he had

       been drinking alcohol in the morning at the Rally’s and that the police had

       come to the scene multiple times, given him a breathalyzer test, and told him to

       stay in his apartment. Ruiz further testified that he had “refused to listen to

       them” and left his apartment. (Tr. Vol. 2 at 27). He also testified that when

       Officer Wright had come to the scene, he had been “furious” and had “a little

       attitude” with her. (Tr. Vol. 2 at 28, 29).


[12]   Thereafter, the State recalled Officer Wright to offer rebuttal testimony. The

       officer testified about the two dispatch calls and complaints about Ruiz “yelling

       racial slurs” and “causing a disturbance[.]” (Tr. Vol. 2 at 31).


[13]   During closing arguments, Ruiz’s counsel contended that Officer Wright’s

       direct observation of Ruiz’s actions during the third dispatch call (i.e., yelling




       3
         Ruiz referred to his dismissal request as a directed verdict, which applies to “a case tried before a jury[.]”
       Ind. Trial Rule 50(A). Because Ruiz had a bench trial, his dismissal request will be referred to as a motion
       for involuntary dismissal. See Ind. Trial Rule 41(B) (referring to a defendant’s request for dismissal “in an
       action tried by the court without a jury[.]”).

       Court of Appeals of Indiana | Opinion 10A05-1702-CR-311 | November 29, 2017                           Page 5 of 14
       and being “aggravated with the officer”) did not “rise to the level of breach of

       the peace.” (Tr. Vol. 2 at 33). He argued that, at the time Officer Wright came

       to the scene, he “wasn’t breaching the peace” and “wasn’t in danger of . . .

       breaching the peace[.]” (Tr. Vol. 2 at 33). Ruiz suggested that Officer Wright

       was required to witness him breaching the peace or being in danger of

       breaching the peace at the time she saw that he was intoxicated in a public

       place.


[14]   The State argued in rebuttal that the evidence was sufficient to find Ruiz guilty

       of public intoxication. The State pointed out that Officer Wright, who had

       been “reasonably aware as to the prior conduct” of Ruiz, responded to “yet

       another call . . . regarding the same defendant where upon the complaint [wa]s

       [that] he [wa]s breaching the peace” and found Ruiz “in a public place in a state

       of intoxication.” (Tr. Vol. 2 at 34).


[15]   The trial court found Ruiz guilty as charged. When entering its verdict, the trial

       court specifically addressed Ruiz’s argument regarding the evidence of the

       breach of peace element as follows:


                [Ruiz’s counsel’s] point is well taken uh as to the element of
                breaching the peace and being observed. Um, and with
                misdemeanors it, it is required basically that the officer see the
                offense taking place. However, the statute as charged says that it
                was either breaching the peace or an imminent danger of doing
                so. In this case[,] we’ve got a situation where I’m not in much
                doubt that Mr. Ruiz was intoxicated by his own testimony he
                was basically sitting on the picnic tables at Hardee’s [sic] which is
                not only a public place but, a public place that was probably not
                designed for the residents of the adjacent apartment complex to
       Court of Appeals of Indiana | Opinion 10A05-1702-CR-311 | November 29, 2017   Page 6 of 14
                sit and drink alcohol. Um and when the witness, when the
                officer showed up[,] there had been two other, two other previous
                calls. Now [sic] didn’t have any personal knowledge of what
                happened but, she does show up and she knows there had been
                two other calls. There is some yelling going back and forth, uh
                and uh her observation would lead her to believe that Mr. Ruiz is
                intoxicated. I think it’s perfectly reasonable to believe that Mr.
                Ruiz was an imminent danger of breaching the peace if she didn’t
                actually see him doing so in that instant. I’m going to find Mr.
                Ruiz guilty. I think the evidence supports that.

       (Tr. Vol. 2 at 34-35). The trial court imposed a six (6) month suspended

       sentence. Ruiz now appeals.4


                                                      Decision
[16]   Ruiz argues that the evidence was insufficient to support his conviction for

       Class B misdemeanor public intoxication.


                When reviewing the sufficiency of the evidence to support a
                conviction, appellate courts must consider only the probative
                evidence and reasonable inferences supporting the verdict. It is
                the fact-finder’s role, not that of appellate courts, to assess
                witness credibility and weigh the evidence to determine whether
                it is sufficient to support a conviction. To preserve this structure,
                when appellate courts are confronted with conflicting evidence,
                they must consider it most favorably to the trial court’s ruling.
                Appellate courts affirm the conviction unless no reasonable fact-
                finder would find the elements of the crime proven beyond a
                reasonable doubt. It is therefore not necessary that the evidence


       4
        We note that Ruiz’s counsel has included a copy of the trial transcript in the Appellant’s Appendix. We
       direct counsel’s attention to Indiana Appellate Rule 50(F), which provides that “parties should not reproduce
       any portion of the transcript in the Appendix” because the “[t]ranscript is transmitted to the Court on Appeal
       pursuant to Rule 12(B)[.]”

       Court of Appeals of Indiana | Opinion 10A05-1702-CR-311 | November 29, 2017                       Page 7 of 14
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

       and citations omitted) (emphasis in original). Additionally, our Indiana

       Supreme Court has explained that “when determining whether the elements of

       an offense are proven beyond a reasonable doubt, a fact-finder may consider

       both the evidence and the resulting reasonable inferences.” Thang v. State,

       10 N.E.3d 1256, 1260 (Ind. 2014) (emphasis in original).


[17]   “Indiana has historically recognized that the purpose of the public intoxication

       statute ‘is to protect the public from the annoyance and deleterious effects

       which may and do occur because of the presence of persons who are in an

       intoxicated condition[.]’” Morgan v. State, 22 N.E.3d 570, 576 (Ind. 2014)

       (quoting State v. Sevier, 117 Ind. 338, 20 N.E. 245, 246-47 (1889)). In 2012, our

       legislature amended the public intoxication statute, INDIANA CODE § 7.1-5-1-3,

       “to add the four conduct elements to the definition of public intoxication so that

       it is no longer a crime to simply be intoxicated in public.” Milam v. State, 14

       N.E.3d 879, 881 (Ind. Ct. App. 2014). See also Stephens v. State, 992 N.E.2d 935,

       938 (Ind. Ct. App. 2013). Our Indiana Supreme Court explained that “[t]he

       legislature’s modifications to the Public Intoxication statute were in apparent

       response to th[e] [Indiana Supreme] Court’s decision in 2011 that affirmed the

       conviction of an automobile passenger for Public Intoxication.” Thang,

       10 N.E.3d at 1260 (citing Moore v. State, 949 N.E.2d 343 (Ind. 2011)). The


       Court of Appeals of Indiana | Opinion 10A05-1702-CR-311 | November 29, 2017   Page 8 of 14
       additional elements in INDIANA CODE § 7.1-5-1-3(a)(1)-(4) “promote[] public

       policy encouraging inebriated persons to avoid creating dangerous situations by

       walking, catching a cab, or riding home with a designated driver rather than

       driving while intoxicated.” Stephens, 992 N.E.2d at 938. “[T]he amended

       statute reflects . . . that . . . ‘“[t]he spirit of the public intoxication statute is to

       prevent people from becoming inebriated and then bothering and/or

       threatening the safety of other people in public places.”’” Holbert v. State, 996

       N.E.2d 396, 401 (Ind. Ct. App. 2013) (quoting Jones v. State, 881 N.E.2d 1095,

       1098 (Ind. Ct. App. 2008) (quoting Wright v. State, 772 N.E.2d 449, 456 (Ind.

       Ct. App. 2002))), trans. denied.


[18]   The amended public intoxication statute in effect at the time of Ruiz’s crime,

       provided, in relevant part, as follows:


               . . . 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.

       I.C. § 7.1-5-1-3(a). To convict Ruiz as charged, the State was required to prove

       beyond a reasonable doubt that Ruiz was in a public place in a state of




       Court of Appeals of Indiana | Opinion 10A05-1702-CR-311 | November 29, 2017       Page 9 of 14
       intoxication and that he breached the peace or was in imminent danger of

       breaching the peace.


[19]   The public intoxication statute does not define the terms, breach of peace or

       imminent danger. Nor has our Indiana Supreme Court defined these terms in

       conjunction with the amended public intoxication statute.5 Our Court has, on

       occasion, defined a breach of peace by borrowing language from our Indiana

       Supreme Court’s footnote in Price v. State, 622 N.E.2d 954, 960 n.6 (Ind. 1993),

       reh’g denied, a case in which our supreme court discussed the disorderly conduct

       statute.6 See Brown v. State, 12 N.E.3d 952, 954 (Ind. Ct. App. 2014) (reviewing

       public intoxication statute); Lemon v. State, 868 N.E.2d 1190, 1194 (Ind. Ct.

       App. 2007) (reviewing citizen’s arrest statute). In that footnote, the Price Court

       rejected the State’s request to recognize the disorderly conduct statute as a

       breach of peace statute and stated as follows:


               Some portions of Ind. Code Ann. § 35-45-1-3 [the disorderly
               conduct statute] embody common law breach of peace
               provisions, see, e.g., Ind. Code Ann. § 35-45-1-3(1) (engaging in
               fighting or tumultuous conduct), but we decline the State’s
               invitation to characterize § 35-45-1-3(2) as a breach of the peace
               or “fighting words” statute. Hornbook law counts violence-either
               actual or threatened-as an essential element of breaching the peace. 11


       5
        Our Indiana Supreme Court has addressed the endangerment of self and others conduct elements of the
       amended public intoxication statute in Thang v. State, 10 N.E.3d 1256 (Ind. 2014) and the harasses, annoys,
       or alarms another person element in Morgan v. State, 22 N.E.3d 570 (Ind. 2017).
       6
        The disorderly conduct statute provides that “[a] person who recklessly, knowingly, or intentionally: (1)
       engages in fighting or tumultuous conduct; (2) makes unreasonable noise and continues to do so after being
       asked to stop; or (3) disrupts a lawful assembly of persons . . . commits disorderly conduct, a Class B
       misdemeanor.” IND. CODE § 35-45-1-3(a).

       Court of Appeals of Indiana | Opinion 10A05-1702-CR-311 | November 29, 2017                    Page 10 of 14
               C.J.S. Breach of the Peace §§ 2 & 3 (1938). None of Indiana’s
               breach of the peace statutes permitted prosecution based on
               expression alone. See, e.g., ch. 6, Rev.Stats. of 1852, § 4 (riot), § 5
               (rout), § 37 (disturbing meetings), § 19 (barratry). While it was
               an offense in Indiana to give a verbal or oral challenge to a
               duel, State v. Perkins (1841), 6 Blackf. 20, this was so because the
               challenger intended to excite the other to violence. 28
               C.J.S. Dueling § 1 (1941) (challenges tend to provoke breaches of
               peace).

               Section 35-45-1-3(2) is aimed at the intrusiveness and loudness of
               expression, not whether it is obscene or provocative. Indeed, one
               could violate the section by “reading the scriptures in an
               unreasonably loud manner,” Mesarosh v. State (1984), Ind. App.,
               459 N.E.2d 426, 430 (Young, J., concurring), or “exploding
               firecrackers in the middle of the night.” Model Penal Code §
               250.2(1)(b) comment 4(a). The State thus adds nothing to its
               case by attaching the labels “obscene” or “fighting words” to
               Price’s speech. Instead, if Price was truly taunting the officer (or
               anyone else) with “fighting words,” then provocation, Ind. Code
               Ann. § 35-42-2-3 (West 1986), should have been charged.

       Price, 622 N.E.2d at 960 n.6 (emphasis added). “[O]ur supreme court has not

       specifically elaborated upon what actions would constitute violence sufficient to

       create a breach of the peace[.]” Lemon, 868 N.E.2d at 1194.


[20]   Nevertheless, our Court has more frequently relied upon prior caselaw dealing

       with citizens’ arrests to define breach of peace. Specifically, we have explained

       that a “‘breach of the peace includes all violations of public peace, order or

       decorum.’” Lemon, 868 N.E.2d at 1194 (quoting State v. Hart, 669 N.E.2d 762,

       764 (Ind. Ct. App. 1996) (citing Census Fed. Credit Union v. Wann, 403 N.E.2d

       348, 350 (Ind. Ct. App. 1980))). A breach of peace “is a violation or


       Court of Appeals of Indiana | Opinion 10A05-1702-CR-311 | November 29, 2017   Page 11 of 14
       disturbance of the public tranquility or order and includes breaking or

       disturbing the public peace by any riotous, forceful, or unlawful

       proceedings.” Lemon, 868 N.E.2d at 1194. “Thus, a breach of the peace may

       involve other offenses.” Id.; see, e.g., Hart, 669 N.E.2d at 764 (holding that a

       person who operates a motor vehicle while intoxicated commits a breach of the

       peace).


[21]   Ruiz does not dispute that he was intoxicated in a public place. Instead, he

       contends that there was no evidence to support the trial court’s determination

       that he was in imminent danger of breaching the peace. He contends that the

       State was required to show that he “was likely to become violent or riotous, as

       would be necessary to be in imminent danger of breaching the peace.” (Ruiz’s

       Br. 10). We disagree.


[22]   Here, the record reveals that Ruiz started drinking vodka in the morning with a

       few friends while sitting at some picnic tables at a Rally’s near the apartments.

       In the afternoon, the police were dispatched to the apartments on three separate

       occasions based on complaints regarding Ruiz’s behavior. Within a twenty-

       minute period, residents called police two different times to report that an

       intoxicated Ruiz was “yelling racial slurs at the caller” and then “causing a

       “disturbance[.]” (Tr. Vol. 2 at 31). Officers instructed Ruiz to stay in his

       apartment, but he “refused to listen to them” and left his apartment, which led

       to the third dispatch call. (Tr. Vol. 2 at 27). When Officer Wright responded to

       the third dispatch call, she was aware that there had been two recent dispatch

       calls to the apartment complex for complaints about Ruiz. After a few of the

       Court of Appeals of Indiana | Opinion 10A05-1702-CR-311 | November 29, 2017   Page 12 of 14
       apartment residents, who were standing approximately two hundred feet away

       from Ruiz, pointed toward Ruiz and yelled to inform the officer that “that was

       the guy” who had “yell[ed] obscene things . . . to them[,]” Ruiz started yelling

       at them. (Tr. Vol. 2 at 13). When Officer Wright spoke to Ruiz, he initially

       refused to give the officer his name. Ruiz smelled of alcohol and had blood

       shot eyes, slurred speech, and trouble keeping his balance. Ruiz admitted

       during his testimony that he was “furious” and had “a little attitude” with

       Officer Wright. (Tr. Vol. 2 at 28, 29).


[23]   The trial court weighed this evidence and determined that it was “perfectly

       reasonable to believe that Mr. Ruiz was an imminent danger of breaching the

       peace[.]” (Tr. Vol. 2 at 35). Based on the evidence presented, it was reasonable

       for the trial court, as factfinder, to draw an inference that Ruiz—who was

       undoubtedly intoxicated in a public place; had behaved in a manner that

       required the police to come two previous times to respond to residents’

       complaints about Ruiz; was yelling at residents; was admittedly “furious” and

       had a “little attitude” with the officer; and was being uncooperative with the

       officer—was in imminent danger of breaching the peace or disturbing the public

       tranquility when Officer Wright responded for a third time to the apartments.

       See Thang, 10 N.E.3d at 1260 (explaining that “when determining whether the

       elements of an offense are proven beyond a reasonable doubt, a fact-finder

       may consider both the evidence and the resulting reasonable inferences”) (emphasis

       in original). See also Drane, 867 N.E.2d at 146 (explaining that when we “must

       consider only the probative evidence and reasonable inferences supporting the


       Court of Appeals of Indiana | Opinion 10A05-1702-CR-311 | November 29, 2017   Page 13 of 14
       verdict”) (emphasis in original). Accordingly, we affirm his public intoxication

       conviction. See, e.g., Thang, 10 N.E.3d at 1260 (affirming the defendant’s public

       intoxication conviction where the evidence and reasonable inferences supported

       the conviction).


[24]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 10A05-1702-CR-311 | November 29, 2017   Page 14 of 14
