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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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