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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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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