Alan Ruiz v. State of Indiana ( 2017 )

FILED
Nov 29 2017, 9:05 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Justin B. Mills Curtis T. Hill, Jr.
Mills Law Office Attorney General of Indiana
Marengo, Indiana Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alan Ruiz, November 29, 2017
Appellant-Defendant, Court of Appeals Case No.
10A05-1702-CR-311
v. Appeal from the Clark Circuit
Court
State of Indiana, The Honorable Joseph P. Weber,
Appellee-Plaintiff. Judge
Trial Court Cause No.
10C03-1605-CM-1130
Pyle, Judge.
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Statement of the Case
[1] Alan Ruiz (“Ruiz”) appeals his conviction, following a bench trial, for Class B
misdemeanor public intoxication.1 Ruiz argues that there was insufficient
evidence to support his conviction. Because the evidence and reasonable
inferences show that Ruiz was intoxicated in a public place and in imminent
danger of breaching the peace, we affirm his conviction.
[2] We affirm.2
Issue
Whether sufficient evidence supports Ruiz’s conviction.
Facts
[3] The facts most favorable to the judgment reveal that, during the morning hours
of May 6, 2016, Ruiz and some friends, who all lived in the King Solomon
apartments (“the apartments”) in Clark County, were drinking alcohol while
sitting at some picnic tables at a Rally’s restaurant that was adjacent to the
apartments. That day, within a two-hour window of time, officers from the
1
IND. CODE § 7.1-5-1-3.
2
We note that the “Judgment of Conviction and Sentence” order, dated January 9, 2017, contained in Ruiz’s
Appellant’s Appendix suggests that Ruiz pled guilty to Class B misdemeanor public intoxication pursuant to
a plea agreement. (App. Vol. 2 at 8). However, the transcript of the January 9, 2017 bench trial and the
chronological case summary entry for January 9 confirm that Ruiz was found guilty of the charge after a
bench trial. We remand to the trial court to correct its written order to correctly reflect that judgment of
conviction was entered pursuant to a guilty verdict following a bench trial.
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Jefferson Police Department were dispatched to the apartments on three
separate occasions for complaints regarding Ruiz.
[4] The first dispatch occurred at 1:17 p.m. and the complaint was that the “subject
was yelling racial slurs at the caller” and “drinking vodka in the grass area at
Rally’s.” (Tr. Vol. 2 at 31). The responding officers told Ruiz that he was “not
allowed to be outside” and instructed him to go to and remain in his apartment.
(Tr. Vol. 2 at 27).
[5] The second dispatch call occurred, twenty-two minutes later, at 1:39 p.m. The
complaint for this second call was that an “intoxicated subject” was in the
hallway “causing a disturbance[.]” (Tr. Vol. 2 at 31). The responding officers
“advised [Ruiz] to stay in his apartment” and warned him that “if they received
another call that he would be incarcerated.” (Tr. Vol. 2 at 31).
[6] The third dispatch call occurred two hours later, at approximately 3:40 p.m.,
and this dispatch call was based on a complaint that an “intoxicated male
subject” had been “creating a disturbance with some residents nearby there.”
(Tr. Vol. 2 at 9). Officer Alyssa Wright (“Officer Wright”), who responded to
the call, was aware that this was the third dispatch to the apartment complex
for complaints about Ruiz. Officer Wright had been given a specific description
of the suspect and was informed that he was walking in a grassy area near the
apartments and the Rally’s restaurant.
[7] When Officer Wright arrived at the scene, she saw Ruiz walking in the grass
near the Rally’s and noticed that he was “swaying back and forth” and having
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“a lot of trouble keeping his balance.” (Tr. Vol. 2 at 10). A few of the
apartment residents, who were approximately two hundred feet away from
Ruiz, pointed toward Ruiz and yelled to inform the officer that “that was the
guy[,]” who had “yell[ed] obscene things in their direction and to them.” (Tr.
Vol. 2 at 13). In response to the residents’ pointing, Ruiz “start[ed] yelling at
them.” (Tr. Vol. 2 at 14).
[8] When Officer Wright approached Ruiz to speak to him, she saw that he had
“extremely red, glassy . . . blood shot eyes” and noticed that his “speech was
extremely slow and slurred.” (Tr. Vol. 2 at 10). She also noticed that Ruiz
smelled of an alcoholic beverage and that he had a pint-sized bottle of vodka in
his jeans pocket. Officer Wright gave Ruiz a portable breath test. Ruiz initially
refused to give the officer his name. He was “furious” and had a “little
attitude” with her. (Tr. Vol. 2 at 28, 29). Based on Ruiz’s intoxication and the
circumstances, including the “first shift officers having gone out on him twice . .
. just two hours prior to [her dispatch] call[,]” Officer Wright ultimately arrested
him. (Tr. Vol. 2 at 13).
[9] The State charged Ruiz with Class B misdemeanor public intoxication. The
charging information alleged, in relevant part, that Ruiz had “either breached
the peace or was in imminent danger of breaching the peace” under INDIANA
CODE § 7.1-5-1-3(a)(3). (App. Vol. 2 at 7).
[10] On January 9, 2017, the trial court held a bench trial. The State presented
testimony from Officer Wright, who focused mainly on the facts regarding
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Ruiz’s actions during the third dispatch to the apartments. After the State’s
presentation of evidence, Ruiz moved for an involuntary dismissal.3 Ruiz
argued that the officer’s testimony that she saw Ruiz yelling at the residents
who had been pointing him out and her lack of testimony as to how long he
yelled did not rise to the level of a breach of the peace. The trial court denied
Ruiz’s motion.
[11] Thereafter, Ruiz testified on his own behalf. Ruiz acknowledged that he had
been drinking alcohol in the morning at the Rally’s and that the police had
come to the scene multiple times, given him a breathalyzer test, and told him to
stay in his apartment. Ruiz further testified that he had “refused to listen to
them” and left his apartment. (Tr. Vol. 2 at 27). He also testified that when
Officer Wright had come to the scene, he had been “furious” and had “a little
attitude” with her. (Tr. Vol. 2 at 28, 29).
[12] Thereafter, the State recalled Officer Wright to offer rebuttal testimony. The
officer testified about the two dispatch calls and complaints about Ruiz “yelling
racial slurs” and “causing a disturbance[.]” (Tr. Vol. 2 at 31).
[13] During closing arguments, Ruiz’s counsel contended that Officer Wright’s
direct observation of Ruiz’s actions during the third dispatch call (i.e., yelling
3
Ruiz referred to his dismissal request as a directed verdict, which applies to “a case tried before a jury[.]”
Ind. Trial Rule 50(A). Because Ruiz had a bench trial, his dismissal request will be referred to as a motion
for involuntary dismissal. See Ind. Trial Rule 41(B) (referring to a defendant’s request for dismissal “in an
action tried by the court without a jury[.]”).
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and being “aggravated with the officer”) did not “rise to the level of breach of
the peace.” (Tr. Vol. 2 at 33). He argued that, at the time Officer Wright came
to the scene, he “wasn’t breaching the peace” and “wasn’t in danger of . . .
breaching the peace[.]” (Tr. Vol. 2 at 33). Ruiz suggested that Officer Wright
was required to witness him breaching the peace or being in danger of
breaching the peace at the time she saw that he was intoxicated in a public
place.
[14] The State argued in rebuttal that the evidence was sufficient to find Ruiz guilty
of public intoxication. The State pointed out that Officer Wright, who had
been “reasonably aware as to the prior conduct” of Ruiz, responded to “yet
another call . . . regarding the same defendant where upon the complaint [wa]s
[that] he [wa]s breaching the peace” and found Ruiz “in a public place in a state
of intoxication.” (Tr. Vol. 2 at 34).
[15] The trial court found Ruiz guilty as charged. When entering its verdict, the trial
court specifically addressed Ruiz’s argument regarding the evidence of the
breach of peace element as follows:
[Ruiz’s counsel’s] point is well taken uh as to the element of
breaching the peace and being observed. Um, and with
misdemeanors it, it is required basically that the officer see the
offense taking place. However, the statute as charged says that it
was either breaching the peace or an imminent danger of doing
so. In this case[,] we’ve got a situation where I’m not in much
doubt that Mr. Ruiz was intoxicated by his own testimony he
was basically sitting on the picnic tables at Hardee’s [sic] which is
not only a public place but, a public place that was probably not
designed for the residents of the adjacent apartment complex to
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sit and drink alcohol. Um and when the witness, when the
officer showed up[,] there had been two other, two other previous
calls. Now [sic] didn’t have any personal knowledge of what
happened but, she does show up and she knows there had been
two other calls. There is some yelling going back and forth, uh
and uh her observation would lead her to believe that Mr. Ruiz is
intoxicated. I think it’s perfectly reasonable to believe that Mr.
Ruiz was an imminent danger of breaching the peace if she didn’t
actually see him doing so in that instant. I’m going to find Mr.
Ruiz guilty. I think the evidence supports that.
(Tr. Vol. 2 at 34-35). The trial court imposed a six (6) month suspended
sentence. Ruiz now appeals.4
Decision
[16] Ruiz argues that the evidence was insufficient to support his conviction for
Class B misdemeanor public intoxication.
When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. It is
the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling.
Appellate courts affirm the conviction unless no reasonable fact-
finder would find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
4
We note that Ruiz’s counsel has included a copy of the trial transcript in the Appellant’s Appendix. We
direct counsel’s attention to Indiana Appellate Rule 50(F), which provides that “parties should not reproduce
any portion of the transcript in the Appendix” because the “[t]ranscript is transmitted to the Court on Appeal
pursuant to Rule 12(B)[.]”
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overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks
and citations omitted) (emphasis in original). Additionally, our Indiana
Supreme Court has explained that “when determining whether the elements of
an offense are proven beyond a reasonable doubt, a fact-finder may consider
both the evidence and the resulting reasonable inferences.” Thang v. State,
10 N.E.3d 1256, 1260 (Ind. 2014) (emphasis in original).
[17] “Indiana has historically recognized that the purpose of the public intoxication
statute ‘is 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[.]’” Morgan v. State, 22 N.E.3d 570, 576 (Ind. 2014)
(quoting State v. Sevier, 117 Ind. 338, 20 N.E. 245, 246-47 (1889)). In 2012, our
legislature amended the public intoxication statute, INDIANA CODE § 7.1-5-1-3,
“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.” Milam v. State, 14
N.E.3d 879, 881 (Ind. Ct. App. 2014). See also Stephens v. State, 992 N.E.2d 935,
938 (Ind. Ct. App. 2013). Our Indiana Supreme Court explained that “[t]he
legislature’s modifications to the Public Intoxication statute were in apparent
response to th[e] [Indiana Supreme] Court’s decision in 2011 that affirmed the
conviction of an automobile passenger for Public Intoxication.” Thang,
10 N.E.3d at 1260 (citing Moore v. State, 949 N.E.2d 343 (Ind. 2011)). The
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additional elements in INDIANA CODE § 7.1-5-1-3(a)(1)-(4) “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.” Stephens, 992 N.E.2d at 938. “[T]he amended
statute reflects . . . that . . . ‘“[t]he spirit of the public intoxication statute is to
prevent people from becoming inebriated and then bothering and/or
threatening the safety of other people in public places.”’” Holbert v. State, 996
N.E.2d 396, 401 (Ind. Ct. App. 2013) (quoting Jones v. State, 881 N.E.2d 1095,
1098 (Ind. Ct. App. 2008) (quoting Wright v. State, 772 N.E.2d 449, 456 (Ind.
Ct. App. 2002))), trans. denied.
[18] The amended public intoxication statute in effect at the time of Ruiz’s crime,
provided, in relevant part, as follows:
. . . it is a Class B misdemeanor for a person to be in a public
place . . . in a state of intoxication caused by the person’s use of
alcohol . . . , 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.
I.C. § 7.1-5-1-3(a). To convict Ruiz as charged, the State was required to prove
beyond a reasonable doubt that Ruiz was in a public place in a state of
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intoxication and that he breached the peace or was in imminent danger of
breaching the peace.
[19] The public intoxication statute does not define the terms, breach of peace or
imminent danger. Nor has our Indiana Supreme Court defined these terms in
conjunction with the amended public intoxication statute.5 Our Court has, on
occasion, defined a breach of peace by borrowing language from our Indiana
Supreme Court’s footnote in Price v. State, 622 N.E.2d 954, 960 n.6 (Ind. 1993),
reh’g denied, a case in which our supreme court discussed the disorderly conduct
statute.6 See Brown v. State, 12 N.E.3d 952, 954 (Ind. Ct. App. 2014) (reviewing
public intoxication statute); Lemon v. State, 868 N.E.2d 1190, 1194 (Ind. Ct.
App. 2007) (reviewing citizen’s arrest statute). In that footnote, the Price Court
rejected the State’s request to recognize the disorderly conduct statute as a
breach of peace statute and stated as follows:
Some portions of Ind. Code Ann. § 35-45-1-3 [the disorderly
conduct statute] embody common law breach of peace
provisions, see, e.g., Ind. Code Ann. § 35-45-1-3(1) (engaging in
fighting or tumultuous conduct), but we decline the State’s
invitation to characterize § 35-45-1-3(2) as a breach of the peace
or “fighting words” statute. Hornbook law counts violence-either
actual or threatened-as an essential element of breaching the peace. 11
5
Our Indiana Supreme Court has addressed the endangerment of self and others conduct elements of the
amended public intoxication statute in Thang v. State, 10 N.E.3d 1256 (Ind. 2014) and the harasses, annoys,
or alarms another person element in Morgan v. State, 22 N.E.3d 570 (Ind. 2017).
6
The disorderly conduct statute provides that “[a] person who recklessly, knowingly, or intentionally: (1)
engages in fighting or tumultuous conduct; (2) makes unreasonable noise and continues to do so after being
asked to stop; or (3) disrupts a lawful assembly of persons . . . commits disorderly conduct, a Class B
misdemeanor.” IND. CODE § 35-45-1-3(a).
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C.J.S. Breach of the Peace §§ 2 & 3 (1938). None of Indiana’s
breach of the peace statutes permitted prosecution based on
expression alone. See, e.g., ch. 6, Rev.Stats. of 1852, § 4 (riot), § 5
(rout), § 37 (disturbing meetings), § 19 (barratry). While it was
an offense in Indiana to give a verbal or oral challenge to a
duel, State v. Perkins (1841), 6 Blackf. 20, this was so because the
challenger intended to excite the other to violence. 28
C.J.S. Dueling § 1 (1941) (challenges tend to provoke breaches of
peace).
Section 35-45-1-3(2) is aimed at the intrusiveness and loudness of
expression, not whether it is obscene or provocative. Indeed, one
could violate the section by “reading the scriptures in an
unreasonably loud manner,” Mesarosh v. State (1984), Ind. App.,
459 N.E.2d 426, 430 (Young, J., concurring), or “exploding
firecrackers in the middle of the night.” Model Penal Code §
250.2(1)(b) comment 4(a). The State thus adds nothing to its
case by attaching the labels “obscene” or “fighting words” to
Price’s speech. Instead, if Price was truly taunting the officer (or
anyone else) with “fighting words,” then provocation, Ind. Code
Ann. § 35-42-2-3 (West 1986), should have been charged.
Price, 622 N.E.2d at 960 n.6 (emphasis added). “[O]ur supreme court has not
specifically elaborated upon what actions would constitute violence sufficient to
create a breach of the peace[.]” Lemon, 868 N.E.2d at 1194.
[20] Nevertheless, our Court has more frequently relied upon prior caselaw dealing
with citizens’ arrests to define breach of peace. Specifically, we have explained
that a “‘breach of the peace includes all violations of public peace, order or
decorum.’” Lemon, 868 N.E.2d at 1194 (quoting State v. Hart, 669 N.E.2d 762,
764 (Ind. Ct. App. 1996) (citing Census Fed. Credit Union v. Wann, 403 N.E.2d
348, 350 (Ind. Ct. App. 1980))). A breach of peace “is a violation or
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disturbance of the public tranquility or order and includes breaking or
disturbing the public peace by any riotous, forceful, or unlawful
proceedings.” Lemon, 868 N.E.2d at 1194. “Thus, a breach of the peace may
involve other offenses.” Id.; see, e.g., Hart, 669 N.E.2d at 764 (holding that a
person who operates a motor vehicle while intoxicated commits a breach of the
peace).
[21] Ruiz does not dispute that he was intoxicated in a public place. Instead, he
contends that there was no evidence to support the trial court’s determination
that he was in imminent danger of breaching the peace. He contends that the
State was required to show that he “was likely to become violent or riotous, as
would be necessary to be in imminent danger of breaching the peace.” (Ruiz’s
Br. 10). We disagree.
[22] Here, the record reveals that Ruiz started drinking vodka in the morning with a
few friends while sitting at some picnic tables at a Rally’s near the apartments.
In the afternoon, the police were dispatched to the apartments on three separate
occasions based on complaints regarding Ruiz’s behavior. Within a twenty-
minute period, residents called police two different times to report that an
intoxicated Ruiz was “yelling racial slurs at the caller” and then “causing a
“disturbance[.]” (Tr. Vol. 2 at 31). Officers instructed Ruiz to stay in his
apartment, but he “refused to listen to them” and left his apartment, which led
to the third dispatch call. (Tr. Vol. 2 at 27). When Officer Wright responded to
the third dispatch call, she was aware that there had been two recent dispatch
calls to the apartment complex for complaints about Ruiz. After a few of the
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apartment residents, who were standing approximately two hundred feet away
from Ruiz, pointed toward Ruiz and yelled to inform the officer that “that was
the guy” who had “yell[ed] obscene things . . . to them[,]” Ruiz started yelling
at them. (Tr. Vol. 2 at 13). When Officer Wright spoke to Ruiz, he initially
refused to give the officer his name. Ruiz smelled of alcohol and had blood
shot eyes, slurred speech, and trouble keeping his balance. Ruiz admitted
during his testimony that he was “furious” and had “a little attitude” with
Officer Wright. (Tr. Vol. 2 at 28, 29).
[23] The trial court weighed this evidence and determined that it was “perfectly
reasonable to believe that Mr. Ruiz was an imminent danger of breaching the
peace[.]” (Tr. Vol. 2 at 35). Based on the evidence presented, it was reasonable
for the trial court, as factfinder, to draw an inference that Ruiz—who was
undoubtedly intoxicated in a public place; had behaved in a manner that
required the police to come two previous times to respond to residents’
complaints about Ruiz; was yelling at residents; was admittedly “furious” and
had a “little attitude” with the officer; and was being uncooperative with the
officer—was in imminent danger of breaching the peace or disturbing the public
tranquility when Officer Wright responded for a third time to the apartments.
See Thang, 10 N.E.3d at 1260 (explaining that “when determining whether the
elements of an offense are proven beyond a reasonable doubt, a fact-finder
may consider both the evidence and the resulting reasonable inferences”) (emphasis
in original). See also Drane, 867 N.E.2d at 146 (explaining that when we “must
consider only the probative evidence and reasonable inferences supporting the
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verdict”) (emphasis in original). Accordingly, we affirm his public intoxication
conviction. See, e.g., Thang, 10 N.E.3d at 1260 (affirming the defendant’s public
intoxication conviction where the evidence and reasonable inferences supported
the conviction).
[24] Affirmed.
Riley, J., and Robb, J., concur.
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