MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                           FILED
Memorandum Decision shall not be regarded as                     Jan 11 2017, 6:35 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,                  CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
collateral estoppel, or the law of the case.                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. Burns                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Katherine M. Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Zachary Poteet,                                          January 11, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1606-CR-1196
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Ronnie Huerta,
State of Indiana,                                        Commissioner.
Appellee-Plaintiff.                                      Cause No. 49G19-1602-CM-7786




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1196 January 11, 2017     Page 1 of 6
                                          Statement of the Case
[1]   Zachary Poteet appeals his conviction of public intoxication, a Class B
                            1
      misdemeanor. We affirm.


                                                     Issue
[2]   Poteet raises one issue, which we restate as: whether the evidence is sufficient

      to sustain his conviction.


                                   Facts and Procedural History
[3]   In the early morning hours of February 27, 2016, Officers Alexandra Lowcher

      and Keith Cutcliff of the Indianapolis Metropolitan Police Department were

      dispatched to an apartment complex in Marion County to investigate a reported

      assault. The officers encountered several individuals, including Poteet, outside

      an apartment building. The officers arrested Poteet after interacting with him

      and further investigating the scene.


[4]   The State charged Poteet with two counts of public intoxication and several

      other charges. At a bench trial, the State dismissed the other charges. The trial

      court determined Poteet was guilty of one count of public intoxication and not

      guilty of the other. This appeal followed.




      1
          Ind. Code § 7.1-5-1-3 (2012).



      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1196 January 11, 2017   Page 2 of 6
                                   Discussion and Decision
[5]   Poteet claims the State failed to prove all of the elements of the offense of public

      intoxication. The State responds that the evidence was sufficient to sustain the

      judgment. When reviewing the sufficiency of the evidence, we neither reweigh

      the evidence nor reexamine witness credibility. Bowman v. State, 51 N.E.3d

      1174, 1181 (Ind. 2016). We consider only the evidence and reasonable

      inferences supporting the judgment. Id. Reversal is appropriate only when a

      reasonable person would not be able to form inferences as to each material

      element of the offense. Naas v. State, 993 N.E.2d 1151, 1152 (Ind. Ct. App.

      2013).


[6]   To obtain a conviction of public intoxication as a Class B misdemeanor as

      charged, the State was required to prove beyond a reasonable doubt that Poteet

      (1) was found in a public place or a place of public resort (2) in a state of

      intoxication (3) caused by the use of alcohol or a controlled substance (4) while

      harassing, annoying, or alarming (5) the officers. Ind. Code § 7.1-5-1-3(a)(4).

      Poteet focuses on the element of harassing, annoying, or alarming another

      person, conceding that he was intoxicated in a public place. Whether a

      defendant’s conduct rises to the level of being harassing, annoying, or alarming

      is determined from the perspective of a reasonable person. See Morgan v. State,

      22 N.E.3d 570, 577 (Ind. 2014).


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

      panel of this Court concluded there was sufficient evidence that the defendant


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1196 January 11, 2017   Page 3 of 6
      harassed, annoyed, or alarmed another person where the defendant ran into a

      woman on the sidewalk and kept moving while she yelled at him. In Naas, 993

      N.E.2d at 1153, a panel of this Court concluded there was sufficient evidence

      that the defendant harassed, annoyed, or alarmed another person where the

      defendant was agitated and yelling, and he advanced toward other people in an

      aggressive manner, causing them to back away. Finally, in Williams v. State,

      989 N.E.2d 366, 370-71 (Ind. Ct. App. 2013), the defendant repeatedly refused

      to comply with officers’ requests to get out of the street and was belligerent to

      the officers, and this conduct was deemed sufficient to support a conviction for

      public intoxication.


[8]   By contrast, in Morgan, our Supreme Court determined there was insufficient

      evidence that the defendant harassed, annoyed, or alarmed another person

      where he was sleeping in a bus stop and acted agitated when an officer

      awakened him. 22 N.E.3d at 579. In addition, in Milam v. State, 14 N.E.3d

      879, 882 (Ind. Ct. App. 2014), a panel of this Court reversed a conviction for

      public intoxication, concluding the defendant’s cursing and arguing with a

      companion “in a loud tone” while they sat in a car was insufficient proof that

      he harassed, annoyed, or alarmed another person.


[9]   In the current case, Officers Lowcher and Cutcliff arrived at the apartment

      complex in the early morning hours of March 27, 2016, to investigate a

      reported assault. They saw Poteet walk around the side of a building and out of

      their sight. Other people indicated that he had been involved in the situation



      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1196 January 11, 2017   Page 4 of 6
       that had led to the police being called. Officer Lowcher followed Poteet around

       the corner.


[10]   Officer Lowcher noted that Poteet was not wearing shoes and his belt and pants

       were undone. She asked him to walk toward her, and she “had to tell him to

       stop. Cause [sic] he was kind of rushing on a little bit.” Tr. p. 23. His hands

       were “clenched” and he seemed “aggressive.” Id. at 24. When Officer

       Lowcher asked him why his pants were undone, Poteet said “he was attempting

       to urinate on the side of the building.” Id. at 23. She handcuffed Poteet,

       escorted him to the front of the building, and had him sit on a curb.


[11]   Once Poteet was seated on the curb, he became “belligerent” and “insulting,

       cursing the entire time.” Id. at 9. “He would ask [the officers] the same

       questions over and over. And if he wasn’t happy with the answer he would

       begin yelling and cursing.” Id. Poteet yelled loudly enough that the noise could

       be heard across the parking lot. He was “rather confrontational” throughout

       his encounter with the officers, displaying an “abusive attitude” and an

       “argumentative nature.” Id. at 9, 11. He called the officers “very colorful

       names” and “just was altogether uncooperative.” Id. at 23-24. The officers

       arrested Poteet after further investigation inside the apartment building.


[12]   The facts of Poteet’s case are closer to the circumstances in Brown, Naas, and

       Williams than the circumstances in Morgan and Milam. Poteet moved toward

       Officer Lowcher in an aggressive manner, much like the defendants in Naas and

       Brown. In addition, Poteet verbally abused the officers, similar to the defendant


       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1196 January 11, 2017   Page 5 of 6
       in Williams. The abuse was extensive and lasted for several minutes. This is

       sufficient evidence from which the trial court could have concluded beyond a

       reasonable doubt that Poteet harassed, annoyed or alarmed the officers.


                                                Conclusion
[13]   For the foregoing reasons, we affirm Poteet’s conviction of public intoxication.


[14]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1196 January 11, 2017   Page 6 of 6
