State v. Culp

433 N.E.2d 823, 1982 Ind. App. LEXIS 1137

• Court: Indiana Court of Appeals
• Decided: April 12, 1982
• Docket: 2-981A330
• Status: Published

Opinions

SHIELDS, Judge.

The State of Indiana (State) appeals pursuant to I.C. 35-1-47-2 (Burns Code Ed., Repl. 1979) from an order of the trial court granting appellees Homer Culp and Rex Bouse’s motion to correct errors in a prosecution for public intoxication. I.C. 7.1-5-1-3 (Burns Code Ed., Supp.1981).¹

We affirm.

On February 17, 1981 several police officers were summoned to a disturbance at an apartment house in Bluffton, Indiana. When the officers arrived at the scene they observed two tenants, Culp and Bouse, inside the apartment house seated near the top of a stairway leading to the second floor of the building. Both men were belligerent and appeared intoxicated. They were eventually placed under arrest for public intoxication.²

At a trial before the court Culp and Bouse were found guilty of public intoxication and duly sentenced. A motion to correct errors followed. After a hearing the trial court granted the motion, vacated the judgment of conviction, and entered a finding of not guilty and judgment of acquittal for both charges of public intoxication. In granting the motion the trial court concluded Culp and Bouse, while intoxicated, were not in a “public place or place of public resort” within the meaning of I.C. 7.1-5-1-3.

The sole issue presented on appeal is whether the enclosed common hallway and stairway area of an apartment house is a “public place or place of public resort” within the meaning of our public intoxication statute.³ This is a matter of first impression in this jurisdiction.

The State contends the common areas of the building are accessible to the several tenants and their guests, and to those providing services to the apartment dwellers. It further notes the manager of the building maintained no security system to restrict the general public from entering upon the common areas of the apartment house. Because these areas are so readily accessible, the State argues the appellees’ behavior is precisely the kind of conduct the public intoxication statute seeks to proscribe. It cites State v. Siever, (1889) 117 Ind. 338, 20 N.E. 245, where our supreme court stated:

“The purpose of the law is to protect the public from the annoyances and deleterious effects which may and do occur because of the presence of persons who are in an intoxicated condition.”

The State also relies upon Heichelbech v. State, (1972) 258 Ind. 334, 281 N.E.2d 102, where the supreme court held, albeit in dicta, an automobile service station is a business establishment open to the public and, although private property, it is a public place as contemplated within the statute.

We acknowledge in certain instances private property may qualify as a “public place or place of public resort.” A business establishment, for example, which impliedly invites consumers to enter upon its premises may, under proper circumstances, be a “public place” within the ambit of the statute. Nevertheless, the weight of authority in Indiana leads to the inexorable conclusion the enclosed common areas of an apartment dwelling are not public areas or places of public resort within the meaning of our public intoxication statute.⁴

It is well established in this state that a private residence, including the private grounds directly outside of it, is not a public place. State v. Sowers, (1876) 52 Ind. 311; Cornell v. State, (1980) Ind.App., 398 N.E.2d 1333, 1339 (Buchanan, C. J. dissenting opinion) (front yard of a private residence is not a public place). Nor does a residence lose its private character merely because a number of people may congregate there with or without invitation. As this court previously stated:

“A private residence is not a public place, in any sense of the term, and the mere suggestion of the fact is a sufficient argument to support it. We are unable to see how a private residence can be made a public place by a number of persons in the neighborhood gathering there, with or without invitation, to pass an evening in social intercourse and innocent amusement. Whether a place is public or not cannot be determined by the number of people who may gather there for some legitimate purpose, but by the place itself. Nor can it be determined by people freely and voluntarily congregating at their own pleasure, or by the invitation of others.”

State v. Tincher, (1898) 21 Ind.App. 142, 51 N.E. 943. In addition, it has been held that a private road or way owned by a private corporation is not a public place for purposes of the public intoxication statute. State v. Moriarty, (1881) 74 Ind. 103. See also Cornell, (vehicle parked 20 feet from public road in lane entering private field is not in public place).

The fact a private residence in the instant case has been converted into an apartment house does not render it or its common areas a place of public resort. It is axiomatic in Indiana that a house used for a private residence does not lose its private character merely by the fact a number of people may gather there or have access to it. This applies with equal vigor to multi-pie unit dwellings. Unlike business enterprises, members of the public at large are not impliedly invited or encouraged to enter the common areas of an apartment house except when they have personal and private matters to conduct with the tenants.⁵

We thus conclude the enclosed hallway and stairway areas of an apartment house are not public places within the context of our public intoxication statute. The trial court therefore properly granted appellees’ motion to correct errors and entered a finding of not guilty and judgment of acquittal.

Judgment affirmed.

SULLIVAN, J., concurs. BUCHANAN, C. J., dissents, with separate opinion.

1 . I.C. 7.1-5-1-3 provides:

“It is a class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication.”

2 . Appellee Bouse was also arrested and subsequently convicted for disorderly conduct. That conviction, however, is not being challenged on appeal.

3 . In 1935 the term “or a place of public resort” was added to our public intoxication statute by Acts 1935, ch. 226 § 31(11), p. 1155. In Cornell v. State, (1980) Ind.App., 398 N.E.2d 1333, 1335 n.3 this court stated:

“Although no Indiana decisions have defined ‘a place of public resort,’ several early decisions defined a public place as: ‘A public place is one where all persons have a right to go.’ (Citations omitted.) In this regard, it does not appear as though the legislature’s inclusion of ‘or a place of public resort’ has changed prior case law considering the question of what constitutes a public place. Rather, it appears as though the additional language merely clarifies that a public place encompasses places the public, i.e., all persons, have a right of frequent assembly. Cf. BLACK’S LAW DICTIONARY 1475 (Rev. 4th ed. 1976) (defines ‘resort’ as, ‘[a] place of frequent assembly, a haunt.’); Websters Third New International Dictionary 1934 (Unabridged ed. 1976) (defines ‘resort’ as, inter alia, ‘a place to which one betakes himself or persons go habitually; a place of frequent assembly.’).

“Indeed, an early appellate court decision, by dicta, recognized a public place encompasses places where all persons have a right of frequent assembly, i.e., a place of public resort. See State v. Tincher [21 Ind.App. 142, 51 N.E. 943], supra, wherein the Court of Appeals quotes the following statement from Parker v. State, 26 Tex. 204:

‘A ‘public place’ does not mean a place devoted solely to the uses of the public; but it means a place which is in point of fact public, as distinguished from private, — a place that is visited by many persons, and usually accessible to the neighboring public, (emphasis added). 21 Ind.App. at 144, 51 N.E. at 944.’

“Further evidence prior case law considering the question of what constitutes a public place has not been changed by the inclusion of ‘or a place of public resort’ is evidenced by the fact that the more recent decisions continue to speak in terms ‘a public place’ rather than ‘a public place or a place of public resort.’ See e.g. Miles v. State, (1966) 247 Ind. 423, 216 N.E.2d 847; Wilhite v. State, (1947) 225 Ind. 45, 71 N.E.2d 925.”

4 . We do not imply apartment dwellers and their guests are without protection from the annoyances and inconveniences which accompany offensive behavior in the enclosed common hallways of an apartment building. Quite to the contrary, Indiana’s disorderly conduct statute proscribes the type of belligerent conduct alleged in the instant case. I.C. 35-45-1-3 (Burns Code Ed., Repl. 1979) provides:

“Disorderly conduct. — A person who recklessly, knowingly or intentionally.

(1) Engages in fighting or in tumultuous conduct;

(2) Makes unreasonable noise and continues to do so after being asked to stop;

(3) Disrupts a lawful assembly of persons; or

(4) Obstructs vehicular or pedestrian traffic; commits disorderly conduct, a class B misdemeanor.”

5 . The State cites us to People v. Perez, (1976) 64 Cal.App.3d 297, 134 Cal.Rep. 338, a California Court of Appeals case which determined a hallway of an apartment building to be a public place within the context of its public intoxication statute. While the California decision is worthy of our attention, its applicability in the instant case is limited by the fact that jurisdiction has interpreted the term “public place” much more expansively than Indiana. See People v. Olson, (1971) 18 Cal.App.3d 592, 96 Cal.Rptr. 132 (area outside private residence including lawn, driveway, and front porch is public place).