                                                               Feb 13 2014, 9:18 am




                                                Feb 13 2014, 9:18 am
FOR PUBLICATION


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                      GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   GEORGE P. SHERMAN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

RODREGUS MORGAN,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
              vs.                                  )    No. 49A02-1304-CR-386
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                        APPEAL FROM THE MARION SUPERIOR COURT
                               The Honorable Reuben B. Hill, Judge
                         The Honorable David Hooper, Master Commissioner
                                 Cause No. 49F18-1208-FD-60696



                                       February 13, 2014

                                OPINION - FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

       Appellant, Rodregus J. Morgan (Morgan), appeals his conviction for public

intoxication, a Class B misdemeanor, Ind. Code § 7.1-5-1-3, and disorderly conduct, a

Class B misdemeanor, I.C. § 35-45-1-3(a).

       We affirm in part and reverse in part.

                                         ISSUES

       Morgan raises three issues on appeal, two of which we find dispositive and restate

as the following:

       (1) Whether Indiana’s public intoxication statute is unconstitutionally vague; and

       (2) Whether there is sufficient evidence to sustain Morgan’s conviction for

          disorderly conduct.

                        FACTS AND PROCEDURAL HISTORY

       On the morning of August 31, 2012, Officer Brycen Garner (Officer Garner) of the

Indianapolis Metropolitan Police Department (IMPD) was working for his part-time

employer, IndyGo Bus Service. While stationed at a bus stop located on Ohio Street in

Indianapolis, Indiana, Officer Garner overheard yelling coming from inside the plexiglass

bus shelter. For a few minutes, Officer Garner observed as Morgan slept on the shelter’s

bench while Morgan’s brother yelled for him to wake up. Having become “concerned for

the welfare” of Morgan, Officer Garner, who was dressed in his IMPD uniform, exited his

IMPD patrol vehicle and approached the men. (Transcript p. 10). At the time, Morgan

and his brother were the only two individuals occupying the bus shelter. As Officer Garner

entered the shelter, he detected the odor of alcohol, and Morgan’s brother explained to

                                                2
Officer Garner that “he was trying to awake his brother.” (Tr. p. 12). Officer Garner

tapped Morgan’s shoulder, to which Morgan, who is diagnosed as suffering from sleep

apnea, “raised his head up, looked at [Officer Garner], and said, ‘Get off of me.’” (Tr. p.

13). Morgan dropped his head back down, and Officer Garner informed him that he needed

to vacate the bus shelter.

       After three or four requests from Officer Garner that Morgan exit the shelter,

Morgan, who “seemed very agitated” and “angry in [] demeanor,” eventually stood up.

(Tr. p. 14). As Morgan stood, Officer Garner discerned that the odor of alcohol was

“emitting from [Morgan’s] breath and body.” (Tr. p. 14). Officer Garner also observed

that Morgan’s eyes were bloodshot and glassy, and “Morgan was unsteady on his feet . . .

he wasn’t stumbling but he was swaying from side to side.” (Tr. p. 14). Believing Morgan

to be intoxicated, “coupled with the fact that . . . his behavior was annoying,” Officer

Garner placed Morgan under arrest and escorted him to the patrol vehicle to complete the

arrest paperwork and conduct a search incident to arrest. (Tr. p. 15). During this time,

Morgan “continued to yell and bring undue noise to himself and attention to himself, all

the way across the street and at [Officer Garner’s] vehicle” and asked Officer Garner if he

was “happy with [himself] for locking a brother up[.]” (Tr. pp. 28-29). Officer Garner

provided Morgan with multiple warnings “to stop making unreasonable noise and

yelling[,]” but Morgan “just continued on this path of saying that he didn’t do anything

wrong, just very loud and very agitated.” (Tr. pp. 28-29). While waiting for a police

vehicle to arrive to transport Morgan, Morgan—erroneously believing that he and Officer



                                            3
Garner had been classmates—told Officer Garner “that he was going to kick [his] ass like

he did in high school.” (Tr. p. 30).

       The same day, the State filed an Information charging Morgan with Count I,

intimidation, a Class D felony, I.C. § 35-45-2-1(b); Count II, public intoxication, a Class

B misdemeanor, I.C. § 7.1-5-1-3; and Count III, disorderly conduct, a Class B

misdemeanor, I.C. § 35-45-1-3(a). Morgan waived his right to a jury trial, and on April 4,

2013, the trial court conducted a bench trial. During the trial, Morgan’s counsel moved “to

suppress any observations [made] subsequent to the arrest of [Morgan,]” arguing that the

recently enacted public intoxication statute, “when referencing annoying behavior, is not

meant to refer to the officer himself.” (Tr. p. 16). The trial court denied Morgan’s motion

to suppress. Shortly thereafter, Morgan renewed his motion to suppress, this time arguing

that Officer Garner identified Morgan’s refusal to leave the bus shelter as the sole basis for

finding his behavior annoying, and the legislature could not have intended to expand the

statute such that a police officer could make an arrest for any behavior he or she deems to

be annoying. In denying Morgan’s renewed suppression motion, the trial court stated, “As

I picture . . . a scene of somebody passed out, had to be brought to numerous times, who is

unsteady on [his] feet with alcohol on [his] breath, I find that this [is] enough to state

reasonably that it is annoying.” (Tr. p. 27).

       After the State rested its case-in-chief, Morgan moved to dismiss the charges for

public intoxication and intimidation pursuant to Indiana Trial Rule 41(B). Morgan argued

that the public intoxication statute is vague and thus contrary to both the United States

Constitution and the Indiana Constitution. The trial court denied Morgan’s motion to

                                                4
dismiss with respect to public intoxication because “the proper motion is a pre-trial motion

to dismiss and . . . the Attorney General needs to be on notice.” (Tr. p. 40). However, the

trial court granted Morgan’s motion to dismiss Count I, intimidation, because the State had

charged Morgan under the wrong portion of the statute. At the close of the evidence, the

trial court entered a guilty verdict as to Counts II and III, public intoxication and disorderly

conduct. Immediately thereafter, the trial court sentenced Morgan to two concurrent

sentences of 180 days, with sixteen days executed and 164 days suspended to probation.

       Morgan now appeals. Additional facts will be provided as necessary.

                              DISCUSSION AND DECISION

                     I. Constitutionality of Public Intoxication Statute

       Morgan claims that Indiana Code section 7.1-5-1-3, which states that it is a Class B

misdemeanor if an individual is intoxicated while in a public place and “harasses, annoys,

or alarms another person[,]” is unconstitutionally vague.             I.C. § 7.1-5-1-3(a)(4).

Specifically, Morgan argues that “the statute fails to define ‘annoys,’ and there is no

objective standard for evaluating what ‘annoys’” constitutes. (Appellant’s Br. p. 7).

Morgan also contends that the statute encourages arbitrary and discriminatory

enforcement. In response, the State contends that Morgan has waived the issue on appeal

by failing to challenge the statute’s constitutionality through a pre-trial motion to dismiss.

                                          A. Waiver

       In general, a party’s “failure to file a proper motion to dismiss raising a

constitutional challenge to a criminal statute waives the issue on appeal.” Lee v. State, 973

N.E.2d 1207, 1209 (Ind. Ct. App. 2012), trans. denied. Yet, even in cases where the

                                               5
defendant has failed to file the necessary motion to dismiss, Indiana’s appellate courts have,

at times, considered claims that a statute is unconstitutional. Baumgartner v. State, 891

N.E.2d 1131, 1136 (Ind. Ct. App. 2008). In fact, our supreme court has previously

determined that “the constitutionality of a statute may be raised at any stage of the

proceeding.” Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992).

       In this case, Morgan did not file a motion to dismiss twenty days prior to the

omnibus date, as required by Indiana Code section 35-34-1-4(a)(1),(b) and section 35-34-

1-6(a)(3). He did, however, move for dismissal during the bench trial and cited authority

in support of his argument that the statute is unconstitutionally vague. See Adams v. State,

804 N.E.2d 1169, 1172 (Ind. Ct. App. 2004) (finding defendant waived constitutional

challenge where he “failed to file a motion to dismiss, and he did not object to the

constitutionality of the statute at trial”). Accordingly, we elect to address the merits of

Morgan’s claim.

                                       B. Vagueness

       Whether a statute is unconstitutional is a question of law, which we review de novo.

Lee, 973 N.E.2d at 1209.       When considering a statute’s validity, we begin with a

presumption that it is constitutional. Price v. State, 911 N.E.2d 716, 719 (Ind. Ct. App.

2009), trans. denied. The defendant bears the burden of rebutting this presumption, and

we will resolve all doubts in favor of the statute’s constitutionality. Duncan v. State, 975

N.E.2d 838, 844 (Ind. Ct. App. 2012).

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

which now provides that

                                              6
       it 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.

I.C. § 7.1-5-1-3(a). Due process principles advise that a penal statute is unconstitutionally

vague if it fails to clearly define what conduct is prohibited. Weideman v. State, 890 N.E.2d

27, 31 (Ind. Ct. App. 2008). Morgan contends that “[t]he public intoxication statute is void

for vagueness because the term ‘annoys’ criminalizes behavior depending on the subjective

sensitivities of each individual, and it fails to provide sufficiently definite warning as to the

proscribed conduct when measured by common understanding.” (Appellant’s Br. p. 6). In

turn, the State argues that

       [a]ny reasonable person is on notice under this statute that intoxicated
       annoyance of others in public is prohibited conduct. A person of ordinary
       intelligence certainly would know that lying drunk in a public bus shelter that
       the general public uses throughout the day for transportation constitutes
       conduct that would annoy others, especially when the intoxicated person
       angrily and continually refuses to move when asked to do so by another
       person.

(State’s Br. pp. 8-9).

       A criminal statute may be found unconstitutionally vague if it either: (1) fails “to

provide notice enabling ordinary people to understand the conduct it prohibits,” or (2)

“authorizes or encourages arbitrary or discriminatory enforcement.” Adams v. State, 968

N.E.2d 281, 285 (Ind. Ct. App. 2012), trans. denied. The statute must “give a person of

ordinary intelligence fair notice that his contemplated conduct is forbidden so that ‘no man

shall be held criminally responsible for conduct which he could not reasonably understand

                                               7
to be proscribed.’” Kaur v. State, 987 N.E.2d 164, 168 (Ind. Ct. App. 2013) (quoting

Healthscript, Inc. v. State, 770 N.E.2d 810, 816 (Ind. 2002)). Fair notice does not require

that a statute “specifically list all items of prohibited conduct.” Adams, 968 N.E.2d at 285.

However, “‘there must be something in a criminal statute to indicate where the line is to be

drawn between trivial and substantial things so that erratic arrests and convictions for trivial

acts and omissions will not occur. It cannot be left to juries, judges, and prosecutors to

draw such lines.’” Kaur, 987 N.E.2d at 168 (quoting State v. Downey, 476 N.E.2d 121,

123 (Ind. 1985)). A vagueness challenge that does not concern First Amendment rights is

“examined in light of the facts of that particular case.” Price, 911 N.E.2d at 719. A

defendant may not formulate “hypothetical situations which might demonstrate

vagueness.” Kaur, 987 N.E.2d at 169. It is also well-established that a statute is not

unconstitutionally vague just because it does not provide a specific definition. Wright v.

State, 772 N.E.2d 449, 457 (Ind. Ct. App. 2002).

       Morgan has raised an issue of first impression as Indiana courts have not previously

construed the term “annoys” in the context of the public intoxication statute. Generally,

statutorily undefined words are given their plain, ordinary, and usual meaning. Weideman,

890 N.E.2d at 32 (citing I.C. § 1-1-4-1(c)). To ascertain how ordinary people understand

statutory terms, courts may consult dictionaries. Houston v. State, 898 N.E.2d 358, 362

(Ind. Ct. App. 2008), trans. denied. “Annoy” has been defined as: “to disturb or irritate

especially by repeated acts” or “to harass especially by quick brief attacks.” MERRIAM-

WEBSTER.COM. We find that this definition may encompass a vast array of human

behavior, and the statute provides no guidance for distinguishing between acceptable and

                                               8
annoying conduct. See Brown v. State, 868 N.E.2d 464, 468 (Ind. 2007). Our court has

previously addressed the constitutionality of other laws with similar language, and we find

two decisions particularly instructive.

       First, in Kinney v. State, 404 N.E.2d 49 (Ind. Ct. App. 1980), this court upheld the

constitutionality of Indiana’s harassment statute, which prohibits a person from calling,

corresponding, or otherwise attempting to contact another individual “with intent to harass,

annoy, or alarm another person but with no intent of legitimate communication.” Id. at

50 (emphasis added) (quoting I.C. § 35-45-2-2(a)). Because the statute requires that a

“specific act” be “accompanied by a specific intent,” we held that it was not void for

vagueness. Id. at 51. We further noted that a defendant cannot “be said to suffer from lack

of warning or knowledge that the act which he does is a violation of law” where a statute

imposes punishment “only for an act knowingly done with the purpose of doing that which

the statute prohibits.” Id. (quoting United States v. Nat’l Dairy Corp., 372 U.S. 29, 35

(1963)). See Johnson v. State, 648 N.E.2d 666, 670 (Ind. Ct. App. 1995) (“That the State

must prove the defendant himself entertained specific intent militates against a

determination that the statutes are vague.”).

       Second, in Lutz v. City of Indianapolis, 820 N.E.2d 766 (Ind. Ct. App. 2005), this

court addressed the constitutionality of a city noise ordinance, which made it “unlawful for

any person to make, continue or cause to be made or continued any loud, unnecessary or

unusual noise, or any noise which either annoys, disturbs, injures or endangers the comfort,

repose, health and peace or safety of others within the city.” Id. at 768 (emphasis added).

We found this language lacked “an objective test” to “enable individuals of ordinary

                                                9
intelligence to adequately comprehend what conduct the [o]rdinance” prohibited. Id. at

769. Because the ordinance failed to “include a sufficiently ascertainable standard of

conduct[,]” a reasonableness test that would “provide[] an intelligible enforcement

guideline for police officers and prosecutors,” or a warning requirement to protect “those

individuals who might not realize that their noise was unreasonable[,]” we held that it was

unconstitutionally vague. Id. at 769-71. See id. at 769 (distinguishing Price v. State, 622

N.E.2d 954 (Ind. 1993), where our supreme court upheld the constitutionality of the

disorderly conduct statute against a vagueness challenge because the statute “is narrowly

tailored to prohibit ‘unreasonable’ noise made only after an individual has been warned

about his conduct”). See also Price, 911 N.E.2d at 720 (“[A] reasonableness standard

contained in a statute provides ‘a constraining and intelligible enforcement standard for

those charged with enforcing the statutes.’” (quoting Johnson, 648 N.E.2d at 670)).

       Additionally, Morgan relies on Coates v. Cincinnati, 402 U.S. 611 (1971), where

the United States Supreme Court declared that, on its face, a city ordinance prohibiting

“three or more persons” from assembling on a city sidewalk “and there conduct[ing]

themselves in a manner annoying to persons passing by[,]” was unconstitutionally vague.

Id. at 612, 616. Finding the ordinance “subjects the exercise of the right of assembly to an

unascertainable standard,” the Supreme Court stated,

               Conduct that annoys some people does not annoy others. Thus, the
       ordinance is vague, not in the sense that it requires a person to conform his
       conduct to an imprecise but comprehensible normative standard, but rather
       in the sense that no standard of conduct is specified at all. As a result, “men
       of common intelligence must necessarily guess at its meaning.”



                                             10
Id. at 613-14 (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). The State

asserts that Morgan’s reliance upon Coates “is unavailing” because “[t]he long established

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.’” (State’s Br. p. 10) (quoting State v. Sevier, 20 N.E. 245, 246-

47 (Ind. 1889)). While the State is correct about the purpose, our State’s courts have

established that a penal statute must include some “scientifically objective measurement

for compliance” so that the public is aware of the conduct that will subject them to arrest.

Gaines v. State, 973 N.E.2d 1239, 1243 (Ind. Ct. App. 2012).

       Comparing our prior decisions to the case at hand, we find the challenged portion

of Indiana’s public intoxication statute to be unconstitutionally vague. Namely, the statute

neither requires that a defendant have specifically intended to annoy another, nor does it

employ an objective standard to assess whether a defendant’s conduct would be annoying

to a reasonable person. Furthermore, the statute does not mandate that the defendant have

been first warned that his behavior was considered annoying conduct. Instead, this section

of the statute enables arbitrary and discriminatory enforcement because the illegality of any

conduct—no matter how trivial or how substantial—is based solely on the subjective

feelings of a particular person at any given time. See id.

                                       C. Severability

       It is a well-established rule of statutory construction that if, after striking a portion

of a statute as unconstitutional, the “remainder, standing alone, is complete, sensible, and

capable of execution, it is our duty to separate and reject the invalid section of the [statute]

                                              11
and allow the valid remainder of the [statute] to stand.” Lutz, 820 N.E.2d at 770. Here, we

hold only that the term “annoying” is void for vagueness. As the removal of “annoying”

from the section does not inhibit the statute’s execution, the remainder of Section (a)

stands.

                                      II. Sufficiency of Evidence

          Morgan next claims there is insufficient evidence to sustain his conviction for

disorderly conduct.1 When reviewing the sufficiency of evidence, we do not reweigh

evidence or judge the credibility of witnesses. Mathews v. State, 978 N.E.2d 438, 442-43

(Ind. Ct. App. 2012), trans. denied. We will consider only the probative evidence that

supports the trial court’s judgment—and any reasonable inferences drawn therefrom—to

determine whether a reasonable trier of fact could conclude that the defendant is guilty

beyond a reasonable doubt. Holbert v. State, 996 N.E.2d 396, 400 (Ind. Ct. App. 2013).

We will uphold the conviction if it is supported by substantial evidence of probative value.

Id. at 400-01.

          “A person who recklessly, knowingly, or intentionally” . . . makes unreasonable

noise and continues to do so after being asked to stop . . . commits disorderly conduct, a

Class B misdemeanor.” I.C. § 35-45-1-3(a)(2). Morgan does not challenge the sufficiency

of the evidence under the statute itself. Rather, he argues that his “criticism of his arrest




1
 Morgan also asserts that there is insufficient evidence to uphold his conviction for public intoxication.
Because we find the portion of the public intoxication statute under which Morgan was charged is
unconstitutionally vague, we need not address this issue.

                                                    12
constituted free speech” protected under Article 1, Section 9 of the Indiana Constitution.”2

(Appellant’s Br. p. 13).

        In reviewing the constitutionality of Morgan’s disorderly conduct conviction, we

employ a two-part analysis. Martin v. State, 908 N.E.2d 285, 287 (Ind. Ct. App. 2009).

First, we must decide whether the State restricted Morgan’s expressive activity. Id.

Second, if the State did restrict expressive activity, we must determine whether Morgan

abused his right to speak. Id. We will uphold the State’s determination that a defendant

has abused his right to speak so long as that determination was rational. Id. at 288.

However, if a defendant’s “expressive activity was political in nature, the State must

demonstrate that it did not materially burden the defendant’s opportunity to engage in

political expression.” Id. If the expressive activity focuses on the speaker’s own conduct,

the expression is not political. Dallaly v. State, 916 N.E.2d 945, 952 (Ind. Ct. App. 2009).

“Expressive activity is political if its aim is to comment on government action, including

criticism of an official acting under color of law.” Martin, 908 N.E.2d at 288. A defendant

bears the burden of establishing that his expressive activity was political. Id. We review

the nature of the expression using an objective standard. Blackman v. State, 868 N.E.2d

579, 585 (Ind. Ct. App. 2007), trans. denied. If there is ambiguity in the nature of the

speech, we must find that the speech is not political. Id.




2
  Morgan did not raise a constitutional claim during the trial; in fact, Morgan’s counsel informed the trial
court that Morgan was “willing to cop to the disorderly charge” because he “was disorderly with the
interaction with the officer.” (Tr. p. 51). As our supreme court has established, “the constitutionality of a
statute may be raised at any stage of the proceeding including raising the issue sua sponte” by the court.
Morse, 593 N.E.2d at 197.

                                                     13
       In this case, the record reveals that Morgan was charged with disorderly conduct for

making unreasonable noise subsequent to his arrest for public intoxication. Officer Garner

testified that “Morgan continued to yell and bring undue noise to himself and attention to

himself” despite “three or four” warnings to stop. (Tr. p. 28). Thus, the State restricted

Morgan’s expressive activity. See Dallaly, 916 N.E.2d at 952. As to the second prong of

the test, Morgan “must prove that ‘the State could not reasonably conclude that the

restricted expression was an “abuse” of [his] right to speak, and therefore, the State could

not properly proscribe the conduct, pursuant to its police power, via the disorderly conduct

statute.’” Blackman, 868 N.E.2d at 585 (alteration in original) (quoting Johnson v. State,

719 N.E.2d 445, 449 (Ind. Ct. App. 1999)). According to Officer Garner,

       Morgan was very, very agitated and annoyed. He was – he was disturbed by
       me in his tone and angry. He stated, am I happy with myself for locking a
       brother up? He just continued on this path of saying that he didn’t do
       anything wrong, just very loud and very agitated.

(Tr. p. 29).

       We find ambiguity in the nature of Morgan’s comments. Although we might infer

that Morgan was objecting to the legality of his arrest by Officer Garner, his repeated

statements that “he didn’t do anything wrong” seem to be directed to his own conduct

rather than that of Officer Garner. (Tr. p. 29). See Whittington v. State, 669 N.E.2d 1363,

1370-71 (Ind. 1996) (finding expression not political where the defendant “protested that

he had not done anything and that the other witnesses were lying” because the “statements

involve the conduct of private individuals, not state action”). Accordingly, we must find

the expression was not political and review the restriction of Morgan’s speech under


                                            14
standard rational review. The record reveals that, despite numerous warnings from Officer

Garner, Morgan yelled and made unreasonable noise, even threatening to “to kick [Officer

Garner’s] ass.” (Tr. p. 30). We therefore find that there was sufficient evidence for the

State to determine that Morgan had abused his right to speak.3

                                           CONCLUSION

        Based on the foregoing, we conclude that Section (a)(4) of the public intoxication

statute is unconstitutionally vague and cannot be the basis of Morgan’s conviction. We

also conclude that there is sufficient evidence to uphold Morgan’s conviction for disorderly

conduct.

        Affirmed in part and reversed in part.

VAIDIK, C.J. and MAY, J. concur




3
  Because we find there is sufficient evidence in support of disorderly conduct, we do not address the
State’s argument that Morgan invited the trial court to convict him of disorderly conduct and “cannot now
take advantage of that error on appeal.” (State’s Br. pp. 14-15).

                                                   15
