Derrick Rockingham v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: July 26, 2012
• Docket: 49A02-1201-CR-25
• Status: Unpublished

Opinion

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MEMORANDUM DECISION - NOT FOR PUBLICATION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. 2 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 3 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). 4 Thus, we conclude that there was sufficient evidence to support Rockingham’s

conviction.

Affirmed.

FRIEDLANDER, J., and BROWN, J., concur.