Aug 11 2014, 10:34 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
COLTON MILAM, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1312-CR-998
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kimberly Brown, Judge
The Honorable Patrick Murphy, Commissioner
Cause No. 49F07-1308-CM-55755
August 11, 2014
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Colton Milam appeals his conviction for Class B misdemeanor public intoxication.
We reverse.
Issue
The sole issue is whether there is sufficient evidence to support Milam’s conviction.
Facts
On August 22, 2013, Indianapolis Metropolitan Police Officer Timothy Esteb was
completing paperwork when he noticed an arm and an object hanging out the passenger’s
side window of a car, followed by the sound of shattering glass. Officer Esteb initiated a
traffic stop of the car, approached the window, which was rolled down, and smelled the
odor of alcohol. Michael Cunigan was in the driver’s seat, Milam was in the front
passenger seat, and Dustin Webb was in the rear passenger seat. Officer Esteb asked if
anyone in the car had been drinking. Milam and Webb admitted that they were drinking,
and Officer Esteb collected and ran all of their identification. Milam said, “this is
bulls***,” and stated that the bottle was thrown from a truck next to them. Tr. p. 8.
Milam began to argue with Webb and told him, “you know you better f******* tell
the truth.” Id at 9. A man passing by stopped to watch the dispute and was told to leave
by Officer Esteb. Milam continued to argue with Webb and Officer Esteb described Milam
as loud, boisterous, and uncooperative. Officer Esteb asked Milam to step out of the car
and handcuffed him, stating that Milam was disrupting his investigation, was
uncooperative, smelled of alcohol, was unsteady on his feet, and had slurred speech. The
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State charged Milam with public intoxication, alleging that he “endangered his life, or the
life of another person; breached the peace or was in imminent danger of breaching the
peace; or harassed, annoyed, or alarmed another person.” App. p. 13. After a bench trial,
the trial court found Milam guilty by way of breaching the peace. Tr. pp. 29-30. Milam
now appeals.
Analysis
Milam challenges the sufficiency of the evidence supporting his conviction of public
intoxication, a Class B misdemeanor. When reviewing the sufficiency of the evidence, we
examine only the probative evidence and reasonable inferences therefrom supporting a
guilty verdict or finding. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012). We will neither
assess witness credibility, nor reweigh the evidence to determine if it was sufficient to
support a conviction. Id. Those roles are reserved exclusively for the finder of fact, not
appellate courts. Id. We must consider only the evidence most favorable to the conviction
and will affirm unless no reasonable fact-finder could have found the crime proven beyond
a reasonable doubt. Id. “Reversal is appropriate only where reasonable persons would not
be able to form inferences as to each material element of the offense.” Naas v. State, 993
N.E.2d 1151, 1152 (Ind. Ct. App. 2013).
Although a sufficiency of evidence standard of review is deferential, it is not
impossible to overcome, nor should it be. Our supreme court has observed that
the Indiana Constitution guarantees “in all cases an absolute right to one appeal.” Galloway
v. State, 938 N.E.2d 699, 709 (Ind. 2010). An impossible standard of review under which
appellate courts merely ‘rubber stamp’ the fact finder’s determinations, no matter how
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unreasonable, would raise serious constitutional concerns because it would make the right
to an appeal illusory.
Milam was convicted of Class B misdemeanor public intoxication. In 2012, the
General Assembly amended the public intoxication statute, defining the offense in part as
follows:
[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 (as
defined in I.C. 35-48-1-9), 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). In the public intoxication statute’s current iteration, the
legislature amended the statute to add the four conduct elements to the definition of public
intoxication so that it is no longer a crime to simply be intoxicated in public.
Prior to July 1, 2012, public intoxication required only proof that a person was
intoxicated in a public place. See Christian v. State, 897 N.E.2d 503, 504 (Ind. Ct. App.
2008), trans. denied. Our supreme court has held that the purpose of the prior law was “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 v. Sevier,
117 Ind. 338, 20 N.E. 245, 246 (1889). Although some cases have been decided under the
amended language it is clear from the amendment that the legislature wanted to limit the
scope of the public intoxication statute and did not intend simply being drunk in a public
place to be a criminal offense, but intended to require some additional conduct. See Holbert
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v. State, 996 N.E.2d 396, 402 (Ind. Ct. App. 2013). The additional elements promote
public policy encouraging inebriated persons to avoid creating dangerous situations by
walking, catching a cab, or riding home with a designated driver rather than driving while
intoxicated.
Milam specifically challenges the trial court’s finding that the evidence proved he
endangered his life or the life of another person or breached the peace. “Whether conduct
proscribed by a criminal law should be excused under certain circumstances on grounds of
public policy is a matter for legislative evaluation and statutory revision if appropriate.”
Moore v. State, 949 N.E.2d 343, 345 (Ind. 2011). We strictly construe penal statutes
against the State to avoid enlarging them beyond the fair meaning of the language used.
Luhrsen v. State, 864 N.E.2d 452, 455-56 (Ind. Ct. App. 2007). Statutes, however, are not
to be construed so strictly that the interpretation defeats the obvious or expressed intent of
the legislature. Id. We presume that the legislature intended that the language be applied
logically and that it not bring about an unjust or absurd result. Id.
Milam concedes that he was intoxicated in a public place. We believe, however,
that reversing Milam’s conviction in this case is consistent with the purpose and spirit of
the current public intoxication statute. Prior to Milam’s arrest there is no evidence to
indicate that Milam endangered his life or the life of another or disturbed the peace. The
trial court declined to determine who threw the bottle from the window and found that it
was immaterial to the decision. The State alleged that Milam was speaking in a loud tone
and caused attention to be drawn to the situation as evidenced by an individual stopping on
a bicycle. The record, however, does not indicate that there was a clear nexus between the
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individual stopping and the argument between Milam and Webb. Officer Esteb observed
Milam arguing with Webb stating “f******* tell the truth” followed by “you’d better tell
the truth.” Tr. pp. 9, 11. There is no evidence in the record to infer that Webb was annoyed
by this request. There also is no evidence to indicate that Officer Esteb felt threated in
anyway by Milam’s statements.
In support of its argument, the State draws our attention to two recent decisions cited
in the appellee’s notice of additional authority: Thang v. State, No. 49S04-1402-CR-72
(Ind. June 27, 2014) and Brown v. State, 49A02-1312-CR-1023 (Ind. Ct. App. July 1,
2014). In Thang, our supreme court affirmed a conviction for public intoxication drawing
inferences from circumstantial evidence to conclude that Thang operated a vehicle while
intoxicated and endangered himself and the public. Thang, slip op. at 4. The court cited
the sudden presence of Thang and his vehicle at a gas station, his intoxicated state, his
possession of the car keys, and the need to tow his vehicle as evidence that he endangered
the public. Id. Here, by contrast, there were no circumstantial facts to indicate that Milam
was driving while intoxicated or created a hazard to endanger himself or the public. Milam
was in the passenger seat, admittedly intoxicated, attempting to avoid blame for throwing
a bottle out of a window.
In Brown, another panel of this court affirmed a conviction for public intoxication,
finding that Brown harassed, annoyed, or alarmed another person. Brown, slip op. at 3.
We reasoned that Brown walking into a woman standing in the middle of the sidewalk,
causing her to yell at him, was sufficient to indicate that he was not entirely aware of his
surroundings and harassed, annoyed, or alarmed the woman. Id. Here, by contrast, the
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record does not indicate that Webb had any reactions when Milam stated “f******* tell
the truth” followed by “you’d better tell the truth.” Tr. pp. 9, 11. Therefore, there is no
evidence to establish the inference that Webb was harassed, annoyed, or alarmed by
Milam’s statements.
Prosecuting and convicting Milam for being intoxicated, in a pulled-over car, while
arguing with Webb or Officer Esteb does not reach the level of disturbing the peace,
harassment, annoyance, or alarm and therefore does not meet the requirements of the public
intoxication statute.
Conclusion
There is insufficient evidence to sustain Milam’s Class B misdemeanor conviction
for public intoxication. We reverse.
Reversed.
BAKER, J., and CRONE, J., concur.
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