MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                           Jan 29 2016, 9:28 am

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLANT
Barbara J. Simmons                                       Gregory F. Zoeller
Oldenburg, Indiana                                       Attorney General of Indiana

                                                         Chandra Karis Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Larry Owens,                                             January 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1505-CR-339
        v.
                                                         Appeal from the Marion Superior
                                                         Court
State of Indiana,
                                                         The Honorable Linda E. Brown,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G10-1412-CM-56405



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-339| January 29, 2016      Page 1 of 7
                                       Statement of the Case
[1]   Larry Owens appeals his two convictions for public intoxication, both as Class

      B misdemeanors. Owens presents two issues for our review, which we restate

      as follows:

              1.      Whether the State presented sufficient evidence to show
                      that he harassed, annoyed, or alarmed another person
                      while Owens was intoxicated in a public place; and


              2.      Whether the trial court’s entry of conviction on both
                      charges violated his right to be free from double jeopardy.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                 Facts and Procedural History
[3]   On December 28, 2014, Indianapolis Metropolitan Police Department Officer

      Charles Tice responded to a call from a manager of a Waffle House restaurant.

      Upon arriving at the restaurant, Officer Tice approached the manager, who

      informed Officer Tice that he had asked an employee, Owens, to leave the

      restaurant, but Owens had refused. During this conversation, Owens “kept

      trying to tell [Officer Tice] what was going on . . . .” Tr. at 8. Officer Tice

      observed that Owens “was a little unsteady on his feet and when he tried to

      interject himself he had slurred speech.” Id. Officer Tice also observed that

      “there was a smell of an intoxicating or alcoholic beverage that became worse

      as [Owens] slurred his speech . . . .” Id. And Owens had “glossed over[,]

      blood[-]shot eyes.” Id.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-339| January 29, 2016   Page 2 of 7
[4]   After speaking with the manager, Officer Tice spoke with Owens in the

      restaurant’s parking lot and instructed Owens to leave the premises. Owens

      then walked about twenty to twenty-five feet away from Officer Tice. Officer

      Tice “thought we were done,” but Owens then “balled his fist up . . . and said

      something” directed at Officer Tice. Id. at 12. Officer Tice could not

      understand what Owens was saying, but Owens was “shaking” his fist at

      Officer Tice and speaking to him in a “loud,” “angry,” and “forceful sounding”

      voice. Id. at 12, 20. Customers of the Waffle House “were coming in and

      out . . . and trying not to pay any attention” to the incident. Id. at 13. Officer

      Tice then arrested Owens.


[5]   The State charged Owens with two counts of public intoxication, both as Class

      B misdemeanors. Count I alleged that Owens had committed Class B

      misdemeanor public intoxication when he was intoxicated in a public place and

      “was harassing, annoying[,] or alarming” others. Appellant’s App. at 11.

      Count II alleged that Owens had committed Class B misdemeanor public

      intoxication when he was intoxicated in a public place and “breached the peace

      or was in imminent danger of breaching the peace.” Id. After a bench trial, the

      court found Owens guilty as charged and entered judgment of conviction

      against Owens on both counts. The court then sentenced Owens to concurrent

      180-day terms. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-339| January 29, 2016   Page 3 of 7
                                        Discussion and Decision
                                  Issue One: Sufficiency of the Evidence

[6]   We first consider Owens’ argument on appeal that the State failed to present

      sufficient evidence to support Count I, public intoxication, as a Class B

      misdemeanor, for having harassed, annoyed, or alarmed another person while

      Owens was intoxicated in a public place.1 Our standard of review for

      sufficiency of the evidence claims is well-settled. Tobar v. State, 740 N.E .2d

      109, 111 (Ind. 2000).

               In reviewing the sufficiency of the evidence, we examine only the
               probative evidence and reasonable inferences that support the
               verdict. We do not assess witness credibility, nor do we reweigh
               the evidence to determine if it was sufficient to support a
               conviction. Under our appellate system, those roles are reserved
               for the finder of fact. Instead, we consider only the evidence
               most favorable to the trial court ruling and affirm the conviction
               unless no reasonable fact-finder could find the elements of the
               crime proven beyond a reasonable doubt.


      Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations and internal

      quotation marks omitted).


[7]   In order to prove public intoxication, as alleged in Count I, the State was

      required to show beyond a reasonable doubt that Owens was in a public place

      in a state of intoxication and Owens harassed, annoyed, or alarmed another


      1
        As discussed below, the State concedes that the trial court’s entry of conviction against Owens on both
      Count I and Count II violated Owens’ double jeopardy rights. As such, we need not consider Owens’
      additional argument that the State failed to present sufficient evidence to support its charge under Count II.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-339| January 29, 2016                Page 4 of 7
      person. Ind. Code § 7.1-5-1-3(a)(4) (2012). Owens does not dispute that he was

      in a public place while intoxicated. Rather, he questions only whether the State

      demonstrated that he harassed, annoyed, or alarmed another person. As our

      supreme court has recently explained: “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) (internal emphasis and quotation marks omitted).

      To determine whether one harasses, annoys, or alarms another person, we

      consider whether a reasonable person under the circumstances would have felt

      harassed, annoyed, or alarmed by the defendant’s behavior. Id. at 577 n.10.


[8]   In Brown v. State, 12 N.E.3d 952, 954-55 (Ind. Ct. App. 2014), trans. denied, we

      held as follows:


              the facts do demonstrate that Brown was harassing, annoying, or
              alarming another person per section (a)(4) of the public
              intoxication statute. According to Officer McAtee, Brown did
              not seem attentive to his surroundings. Brown walked directly
              into a woman on the street, and she began yelling at him
              immediately. As the trial court described the situation, “[it] was
              a little more than just a bumping into. He came out of the bar
              and ran into her and she went and got very upset enough to draw
              this officer’s attention.” After running into the woman, Brown
              continued walking and ignored Officer McAtee’s requests to
              stop. The evidence, which demonstrates that Brown was entirely
              unaware of his surroundings and that the woman “start[ed] going
              berserk” after he walked into her, is enough to allow a reasonable
              trier of fact to infer that Brown harassed, annoyed, or alarmed
              the woman by bumping into her in his intoxicated state.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-339| January 29, 2016   Page 5 of 7
       (Internal citations omitted; alterations in original.)


[9]    Similarly here, Owens arrived to work intoxicated. He refused to leave when

       his manager told him to do so. When Officer Tice arrived and spoke to the

       manager, Owens, obviously intoxicated, repeatedly attempted to interject

       himself into the conversation. After Officer Tice persuaded Owens to leave the

       premises, Owens, from about twenty to twenty-five feet, balled up his fist and

       shook it at Officer Tice. He then began to angrily yell at Officer Tice.

       Although Officer Tice could not understand what Owens was saying, Owens

       was loud enough to attract the attention of customers going to and from the

       Waffle House, and those customers were, as Officer Tice observed, “trying not

       to pay attention” to Owens. Tr. at 13. A trier of fact was free to conclude that,

       on those facts, a reasonable person would have felt harassed, annoyed, or

       alarmed by Owens’ behavior. As such, we affirm his conviction under Count I.


                                       Issue Two: Double Jeopardy

[10]   Owens next asserts that the entry of judgment against him on both Count I and

       Count II violated his right to be free from double jeopardy under Indiana law.

       Although the State disagrees with the grounds on which Owens bases his

       argument on appeal, the State concedes Owens’ conclusion that the entry of

       judgment against him on both Count I and Count II violated Owens’ right to be

       free from double jeopardy under the actual evidence test of Article 1, Section 14

       of the Indiana Constitution. See Richardson v. State, 717 N.E.2d 32, 49 (Ind.

       1999); see also Appellee’s Br. at 11 n.4, 14 (“since these distinct facts supporting

       the separate counts were not parsed out for the trier of fact during closing
       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-339| January 29, 2016   Page 6 of 7
       argument, an actual evidence issue exists, and the State acknowledges that

       remand would be appropriate.”). Having reviewed the record, we agree with

       the State’s concession and rationale. As such, we reverse Owens’ conviction for

       public intoxication as charged under Count II, and we remand with instructions

       that the trial court vacate its judgment of conviction against Owens under that

       count.


[11]   Affirmed in part, reversed in part, and remanded with instructions.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-339| January 29, 2016   Page 7 of 7
