Derrick Rockingham v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Jul 26 2012, 9:07 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
CLERK
case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DERRICK ROCKINGHAM, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1201-CR-25
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert P. Hurley, Judge Pro-Tempore
Cause No. 49F19-1106-CM-45621
July 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge
STATEMENT OF THE CASE
Derrick Rockingham appeals his conviction of public intoxication, a class B
misdemeanor.1
We affirm.
ISSUE
Whether there was sufficient evidence to prove Rockingham was in a “public place.”
FACTS
On June 25, 2011, Rockingham and Kimberly Miller argued while standing in
another person’s front yard. Indianapolis Police Officer Mark Kuykendall was
dispatched to the house in response to a report of “arguing and causing a disturbance
outside.” (Tr. 8).
When Officer Kuykendall arrived, he observed Rockingham standing on a
sidewalk that was intersected by another person’s driveway. The sidewalk ran alongside
the street and was used by people traveling on foot along the street.
Rockingham had a strong odor of an alcoholic beverage on his breath and person,
and Officer Kuykendall observed that Rockingham was belligerent, upset, and appeared
to be intoxicated. Officer Kuykendall also observed that Rockingham was “staggering
around.” (Tr. 14). At some point, Rockingham paced back and forth from his car parked
in the driveway to the sidewalk. After Rockingham’s attempt to walk home was
1
Ind. Code § 7.1-5-1-3.
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unsuccessful, Officer Kuykendall arrested him for public intoxication. After a bench
trial, Rockingham was found guilty of the offense.
DECISION
Rockingham contends that the State presented insufficient evidence to sustain his
conviction. Generally, in addressing a claim of insufficient evidence, we must consider
only the probative evidence and reasonable inferences supporting the trier of fact’s
determination. Glenn v. State, 884 N.E.2d 347, 355 (Ind. Ct. App. 2008), trans. denied.
We will not reweigh the evidence or assess witness credibility in reviewing the
determination. Id. “Reversal is appropriate only when reasonable persons would not be
able to form inferences as to each material element of the offense.” Alvies v. State, 905
N.E.2d 57, 61 (Ind. Ct. App. 2009).
In order to prove that Rockingham committed the offense of public intoxication,
the State was required to show that Rockingham was committing certain acts while
intoxicated in a “public place.” I.C. § 7.1-5-1-3. Rockingham concedes that he was
intoxicated; however, he contends that the State did not meet its burden, as a sidewalk
intersected by a driveway is not a “public place” as that term is used in the statute.
Rockingham characterizes the sidewalk where he was standing as both an extension of
the driveway and as an “apparent easement.” Rockingham’s Br. at 6.
“A ‘public place’ does not mean only a place devoted to the use of the public.”
Jones v. State, 881 N.E.2d 1095, 1097 (Ind. Ct. App. 2008) (citing Wright v. State, 772
N.E.2d 449, 456 (Ind. Ct. App. 2002)). “It also means a place that ‘is in point of fact
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public, as distinguished from private,—a place that is visited by many persons, and
usually accessible to the neighboring public.’” Id. A “public place” is also “a place open
to common and general use, participation, and enjoyment; a place accessible to the
public.” Wright, 772 N.E.2d at 455. On the other hand, a private residence, including the
private grounds directly outside it, is not a public place within the meaning of the statute.
Price v. State, 600 N.E.2d 103, 116 (Ind. Ct. App. 1992), aff’d in pertinent part by Price
v. State, 622 N.E.2d 954 (Ind. 1993).
Here, Rockingham was standing on a sidewalk bisecting a driveway, not the
extension of the driveway. With reference to Rockingham’s designation of the sidewalk
as an easement, we note that there are both “private” and “public” easements. A private
easement is “an easement the enjoyment of which is restricted to one or a few
individuals, while a public easement is one the right to the enjoyment of which is vested
in the public generally . . . .” Easement Definition, Black’s Law Dictionary,
http://thelawdictionary.org/easement (last visited July 9, 2012).
Under the definitions listed above, a sidewalk is a public easement and, for
purposes of the public intoxication statute, is a “public place.” As described in Jones, it
is “a place visited by many persons, and usually accessible to the neighboring public.”2
2
The facts of this case are distinguishable from those in Christian v. State, 897 N.E.2d 503 (Ind. Ct. App.
2008) (defendant located on a friend’s driveway), trans. denied; Jones, 881 N.E.2d 1095 (Ind. Ct. App.
2008) (defendant located on a driveway behind a house); and Cornell v. State, 398 N.E.2d 1333 (Ind. Ct.
App. 1980) (defendant located in a private lane).
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Thus, we conclude that there was sufficient evidence to support Rockingham’s
conviction.
Affirmed.
FRIEDLANDER, J., and BROWN, J., concur.
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