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Inside the Criminal Case: Can a defendant be convicted for being ‘annoying?’

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Inside CC Bell GaerteIn 2012, the General Assembly amended Indiana’s public intoxication statute to provide, in part, that a person was guilty of public intoxication if the individual is intoxicated “in a public place” and “annoys … another person.” Indiana Code §7.1-5-1-3(a)(4). But what constitutes “annoying?”

The Supreme Court of the United States once noted that “[c]onduct that annoys some people does not annoy others.” Coates v. Cincinnati, 402 U.S. 611, 614 (1971). Sometimes the wives of the authors of this article find us annoying when we deem ourselves to be objectively hilarious. If publicly intoxicated, can a police officer’s annoyance really result in the criminal conviction of another? The recent case of Morgan v. State addresses this issue.

Rodregus Morgan was thought to be drunk before he fell asleep at an Indianapolis bus shelter on Ohio Street. Morgan v. State, No. 49A02-1304-CR-386, 2014 Ind. App. LEXIS 51 at *2-3 (Ind. Ct. App. Feb. 13, 2013). Morgan and his brother were the only two occupants of the shelter, and his brother was yelling at Morgan in order to wake him up. Id. at *2. The commotion attracted the attention of Officer Garner, an off-duty police officer working private security for the bus company, but who was nonetheless dressed in an Indianapolis Metropolitan Police Department uniform. Id. at *1-2.

Officer Garner approached Morgan and noticed that Morgan was exhibiting signs of being intoxicated. Id. at *3. Garner also noted that Morgan was “unsteady on his feet” and his “behavior was annoying.” Officer Garner therefore arrested Morgan for public intoxication. Id. After being handcuffed, Morgan continued to yell at Officer Garner asking him if “he was ‘happy with [himself] for locking a brother up’” and insisted that he would kick Officer Garner’s “ass just like he did in high school.” Id. at *3-4. However, Garner and Morgan had not, in fact, been classmates. Id.

The public intoxication statute, as applied to Morgan, makes it a Class B misdemeanor if a person is intoxicated while in public and “harasses, annoys or alarms another person.” Indiana Code §7.1-5-1-3(a)(4). On appeal, Morgan argued that the term “annoy” is unconstitutionally vague in that there is no objective definition of what conduct is proscribed and that the term allows for arbitrary or discriminatory enforcement. Morgan at *6. In response, the state argued that “a person of ordinary intelligence would know that lying drunk in a public bus shelter … would annoy others” especially in conjunction with that person’s refusal to move when asked to do so. Id. at *9.

Personally, the authors of this article have walked past this particular bus shelter on numerous occasions and have never been annoyed by the conduct of others. However, we have never asked anyone to move from the bus shelter. Furthermore, no one has ever declared that we have “ordinary intelligence.”

On review, the Court of Appeals found that the statute was unconstitutionally vague. Id. at *15. The appellate court cited three reasons for this determination: First, the statute does not require a defendant’s specific intent to annoy. Id. Second, it does not use an objective standard to assess whether a defendant’s conduct was annoying. Id. Third, the statute did not mandate that the defendant be warned that his behavior was annoying. Id. As a consequence, the statute allows for 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.” Id. Therefore, according to the Court of Appeals, a Hoosier may not be convicted under the subjective standard of “annoying.”•

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James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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