Jennifer Nelson for www.theindianalawyer.com

The Indiana Supreme Court vacated a man’s public intoxication conviction after finding his agitation does not rise to the level that would annoy a reasonable person. But the justices did find that the statute is not unconstitutionally vague.

Rodregus Morgan challenged his conviction of Class B misdemeanor public intoxication, which occurred after a police officer working security for the city bus service tried to wake Morgan, who was sleeping in a bus shelter. When Morgan woke up, he seemed agitated but complied with the officer’s request to get up from the bench. That’s when the officer believed Morgan was intoxicated and placed him under arrest.

The Indiana Court of Appeals reversed, finding the portion of the public intox statute enacted in 2012 that uses the term “annoys” is void for vagueness. Morgan’s conviction was based on his “annoying” behavior.

In Rodregus Morgan v. State of Indiana, 49S02-1405-CR-325, the justices also reversed the conviction, but only after they found the statute was not unconstitutionally vague. Morgan argued that the term “annoys” is not defined in the statute and the term alone does not provide necessary warning or notice of the prohibited conduct that is required in a criminal statute.

Justice Steven David noted that the term “annoys” standing alone does appear to create a vagueness problem. But because of precedent using a reasonableness standard and principles of statutory interpretation apply, the justices found the statute to be constitutional.

“We acknowledge Morgan’s argument that ‘behavior that annoys some people will not annoy others,’” David wrote. “However, 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,” thus demonstrating the apparent suitability of the word “annoys” within the statute.

Morgan was provided sufficient notice of the type of conduct that is prohibited, and neither arbitrary nor discriminatory enforcement will be authorized or encouraged. But, the justices found insufficient evidence to support his conviction.

“Morgan was agitated after being approached by the police officer. However, the degree of agitation expressed … by Morgan, standing alone, does not rise to the level that would annoy a reasonable person,” David wrote.

Jennifer Nelson for www.theindianalawyer.com

The Indiana Supreme Court reinstated a man’s conviction of being a serious violent felon in possession of a firearm after finding that a detective’s inadmissible hearsay amounts to a harmless error.

The Indiana Court of Appeals reversed Shawn Blount’s conviction based on Detective Terry Smith’s testimony that a witness, Blount’s girlfriend, had identified Blount as the person who shot a gun outside of an Indianapolis hotel. Blount and her son, who also identified Blount as the shooter by using his nickname “Big D,” did not testify at trial. Smith, who was at the hotel conducting surveillance, saw the shooting and identified Blount as the shooter.

The trial court allowed the testimony only in “general terms” rather than the girlfriend’s direct statements.

“Our concern is the danger of prejudice where reliance on the course-of-investigation exclusion is misplaced,” Justice Mark Massa wrote in Shawn Blount v. State of Indiana, 49S02-1405-CR-338. “There is a risk the jury will rely upon the out-of-court assertion as substantive evidence of guilt — rather than for the limited purpose of explaining police investigation — and the defendant will have no chance to challenge that evidence through cross-examination.”

The justices believed the risk of unfair prejudice substantially outweighed any probative value. Smith could have accomplished his goal of explaining how the search narrowed by saying they got Blount’s name through investigation, Massa continued.

But instead of reversing Blount’s conviction as the Court of Appeals did, the justices found his conviction is sufficiently supported by independent evidence of guilt such that the out-of-court statements did not contribute to the jury’s verdict.

Blount also claimed there was a variance between the charging information and the state’s closing argument.

“The charging information here adequately notified Blount he was charged with possessing a firearm on or about November 1, 2012, and the evidence at trial was sufficient to prove just that. Although much of the evidence showed Blount shot a firearm on November 1, the State was only required to prove what it had charged: Blount possessed a firearm on or about November 1. Blount’s own admission — made to police before trial and then again at trial — that he possessed a firearm is simply additional evidence he was guilty as charged. Ultimately, the State’s use of a direct quote from the charging information —‘on or about’ — during closing argument cannot and does not constitute a variance where time is not an element of the offense. Because we find no variance between the pleading and the proof, we find no error,” Massa wrote.