                                                   Jul 01 2014, 8:30 am

FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                GREGORY F. ZOELLER
Marion County Public Defender                Attorney General of Indiana
Indianapolis, Indiana
                                             RICHARD C. WEBSTER
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

JAMES BROWN,                                 )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )       No. 49A02-1312-CR-1023
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE MARION SUPERIOR COURT
                     The Honorable William E. Young, Senior Judge
                          Cause No. 49F07-1309-CM-58029



                                    July 1, 2014

                             OPINION–FOR PUBLICATION

BAKER, Judge
          At approximately 2:30 AM on September 2, 2013, James Brown ran into a woman

on the street because he was drunk and seemingly unaware of his surroundings. In this

case, we are asked to determine whether or not his actions violated the Indiana public

intoxication statute.

          James Brown appeals his conviction for Class B misdemeanor public intoxication.1

He contends that the evidence is insufficient to prove public intoxication because the

State cannot demonstrate that he meets one of the four necessary conduct elements set

forth in the statute. More specifically, he argues that he did not breach the peace and was

not in imminent danger of breaching the peace. Notwithstanding his contention, the

evidence demonstrates that Brown showed signs of intoxication, such as glassy and

bloodshot eyes, a staggered walk, and the odor of alcohol. Moreover, he walked directly

into a woman after exiting the combined entrance to Sky Bar/Caps and Dolls/Crackers

Comedy Club in Indianapolis. As a result, the woman began to yell at him and attracted

the attention of a nearby officer. This evidence is sufficient to prove public intoxication

because Brown demonstrated signs of intoxication while he was in a public place, and he

harassed, annoyed, or alarmed another person. Therefore, we affirm the judgment of the

trial court.

                                          FACTS

          On September 2, 2013, Officer Joseph McAtee was standing on the sidewalk at

the entrance of Sky Bar when he observed Brown exiting the bar. Brown walked out of

1
    Ind. Code §7.1-5-1-3(a).
                                              2
the bar at a normal pace and ran directly into a woman who was standing in the middle of

the sidewalk. The woman began to yell at Brown, so Officer McAtee approached them

to stop the woman from yelling. He also told Brown to stop, but Brown ignored him and

kept walking until he was stopped by Officer Jamal Bill approximately fifteen feet north

of Officer McAtee.

       When Officer McAtee approached Brown, he observed that Brown’s eyes were

“extremely glassy and bloodshot,” and “[h]e smelled very strongly of alcohol.” Tr. p. 14.

Officer McAtee also noticed that Brown had a staggered walk and was distracted by the

people passing by. As a result, Officer McAtee concluded that Brown was extremely

intoxicated.   Officer McAtee asked Brown for identification, but Brown refused to

provide any.    Based on his observations of Brown and the fact that Brown was

intoxicated in an area that was crowded with people and subject to the occurrence of

multiple fights late at night, Officer McAtee believed that Brown was endangering

himself and others. Officer McAtee arrested Brown for public intoxication.

       The State charged Brown with public intoxication as a class B misdemeanor. On

November 14, 2013, a bench trial was held. The trial court denied Brown’s motion for

involuntary dismissal and found him guilty of public intoxication, concluding that he was

intoxicated in public and in imminent danger of breaching the peace. The trial court

sentenced Brown to two days in jail.

       Brown now appeals.

                            DISCUSSION AND DECISION

                                           3
       When reviewing challenges to the sufficiency of the evidence, we do not reweigh

the evidence or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773,

781 (Ind. Ct. App. 2010), trans. denied. Rather, we consider only the evidence most

favorable to the verdict and the reasonable inferences drawn therefrom, and we will

affirm if the evidence and those inferences constitute substantial evidence of probative

value to support the verdict. Id. Reversal is appropriate only when a reasonable trier of

fact would not be able to form inferences as to each material element of the offense. Id.

       In 2012, the General Assembly amended Indiana’s public intoxication statute,

which now provides that:

       [I]t 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 caused by the person’s use of alcohol or a
       controlled substance. . . 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.

Ind. Code §7.1-5-1-3(a). Therefore, in Indiana it is no longer a crime simply to be

intoxicated in public; one of the four additional conduct elements must be proved as well.

       Brown argues that the evidence failed to show that he was in imminent danger of

breaching the peace when, without looking, he ran into a woman who was standing

outside the bar. Appellant’s Br. p. 5. He explains that this event occurred on a crowded

sidewalk and that, despite the officers’ efforts to keep the path clear, it was almost

impossible to pass through. Id. Thus, Brown claims that the “unintentional act of

running into a woman in a crowded space, even though she responded by yelling, is not
                                         4
indicative of a breach of the peace.” Id. While we agree with Brown that he did not

breach the peace, we affirm the trial court’s conviction based on the fact that he harassed,

annoyed, or alarmed another person under Indiana Code section 7.1-5-1-3(a)(4). 2

       We first note that Brown does not argue that he was not in a public place, and the

evidence shows that he was on a sidewalk off Meridian Street in downtown Indianapolis,

a public place, when the officers observed his behavior. Similarly, Brown does not argue

that he was not intoxicated, and the evidence demonstrates that he exhibited signs of

intoxication, such as glassy and bloodshot eyes, a staggered walk, and the odor of

alcohol, when he was apprehended.

       Thus, the only element of the public intoxication statute at issue is whether Brown

endangered himself or others, breached the peace or was in imminent danger of breaching

the peace, or harassed, annoyed, or alarmed another person. We conclude that the State

proved this additional conduct element as well. The trial court emphasized the section

(a)(2) conduct element of the public intoxication statute in its decision, but the conviction

is sustainable on section (a)(4), which is also included in the charging information.

Appellant’s App. p. 13.

       The trial court decided Brown’s actions constituted an imminent breach of the

peace, explaining that he could have run into a man who would have hit him, not yelled

at him. However, our Supreme Court has concluded that breaching the peace requires


2
  Although another panel of this Court declared section (a)(4) of the public intoxication statute
unconstitutionally vague, this decision was vacated when our Supreme Court granted transfer on May 8,
2014. Morgan v. State, 4 N.E.3d 751 (2014), trans. granted.
                                                 5
either actual or threatened violence. Price v. State, 622 N.E.2d 954, 960 n.6 (Ind. 1993).

See also Lemon v. State, 868 N.E.2d 1190, 1194 (Ind. Ct. App. 2007). In this case, we

agree with Brown that his actions did not demonstrate violence or the threat of violence.

Although Brown walked into a woman, he did not intentionally hit her or “stir up some

sort of fight with her.” Tr. p. 19.

       However, 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. Id. at 14. Brown

walked directly into a woman on the street, and she began yelling at him immediately.

Id. at 10-11. 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.” Id. at 21. After running into the woman, Brown

continued walking and ignored Officer McAtee’s requests to stop.            Id. at 14. 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. Id. at 22.

       Based on these facts, we cannot say that the evidence presented by the State is

insufficient to allow a reasonable trier of fact to conclude that Brown was in a public

place in a state of intoxication and endangered himself or other persons, breached the



                                              6
peace, or harassed, annoyed, or alarmed another person. Accordingly, we conclude that

the evidence was sufficient to support Brown’s conviction for public intoxication.

      The judgment of the trial court is affirmed.

KIRSCH, J., and PYLE, J., concur.




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