Justices to decide if defendant was ‘annoying’

The Indiana Supreme Court will decide whether the portion of the public intoxication statute enacted two years ago that uses the term “annoys” is void for vagueness, as the Indiana Court of Appeals held earlier this year.

In February, the COA reversed Rodregus Morgan’s public intoxication conviction, which was based on annoying behavior. Morgan appeared intoxicated at an Indianapolis bus stop and was arrested by an officer, who identified his behavior as “annoying.”

The appellate judges found the challenged portion of I.C. 7.1-5-1-3, the 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,” Judge Patricia Riley wrote. “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,” Judge Patricia Riley wrote for the panel.

Rodregus Morgan v. State of Indiana, 49S02-1405-CR-325, was the only case the justices accepted on transfer last week. They denied transfer to 15 cases, including Mark S. Weinberger, M.D. v. Estate of Phyllis R. Barnes, Deceased, By Peggy Hood as Personal Representative, Joe Clinkenbeard, P.A., et al., 45A04-1107-CT-369, in which the Indiana Court of Appeals denied the state’s motion to intervene in a settlement reached between former doctor Mark Weinberger and the estate of former patient Phyllis Barnes.

The justices also decided 3-2 to vacate their previous grant of transfer to Curtis F. Sample Jr. v. State of Indiana, 45S03-1401-CR-11.  In a not-for-publication decision Sept. 19, 2013, the Court of Appeals affirmed the trial court finding of being a habitual offender on remand from the Supreme Court. Chief Justice Brent Dickson and Justice Robert Rucker voted to keep the case on the Supreme Court’s docket.