Zachary Poteet v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 11, 2017
• Docket: 49A02-1606-CR-1196
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Jan 11 2017, 6:35 am precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Katherine M. Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Zachary Poteet, January 11, 2017

Appellant-Defendant, Court of Appeals Case No. 49A02-1606-CR-1196 v. Appeal from the Marion Superior Court. The Honorable Ronnie Huerta, State of Indiana, Commissioner. Appellee-Plaintiff. Cause No. 49G19-1602-CM-7786

Barteau, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1196 January 11, 2017 Page 1 of 6 Statement of the Case [1] Zachary Poteet appeals his conviction of public intoxication, a Class B 1 misdemeanor. We affirm.

Issue [2] Poteet raises one issue, which we restate as: whether the evidence is sufficient

to sustain his conviction.

Facts and Procedural History [3] In the early morning hours of February 27, 2016, Officers Alexandra Lowcher

and Keith Cutcliff of the Indianapolis Metropolitan Police Department were

dispatched to an apartment complex in Marion County to investigate a reported

assault. The officers encountered several individuals, including Poteet, outside

an apartment building. The officers arrested Poteet after interacting with him

and further investigating the scene.

[4] The State charged Poteet with two counts of public intoxication and several

other charges. At a bench trial, the State dismissed the other charges. The trial

court determined Poteet was guilty of one count of public intoxication and not

guilty of the other. This appeal followed.

1 Ind. Code § 7.1-5-1-3 (2012).

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1196 January 11, 2017 Page 2 of 6 Discussion and Decision [5] Poteet claims the State failed to prove all of the elements of the offense of public

intoxication. The State responds that the evidence was sufficient to sustain the

judgment. When reviewing the sufficiency of the evidence, we neither reweigh

the evidence nor reexamine witness credibility. Bowman v. State, 51 N.E.3d

1174, 1181 (Ind. 2016). We consider only the evidence and reasonable

inferences supporting the judgment. Id. Reversal is appropriate only when a

reasonable person would not be able to form inferences as to each material

element of the offense. Naas v. State, 993 N.E.2d 1151, 1152 (Ind. Ct. App.

2013).

[6] To obtain a conviction of public intoxication as a Class B misdemeanor as

charged, the State was required to prove beyond a reasonable doubt that Poteet

(1) was found in a public place or a place of public resort (2) in a state of

intoxication (3) caused by the use of alcohol or a controlled substance (4) while

harassing, annoying, or alarming (5) the officers. Ind. Code § 7.1-5-1-3(a)(4).

Poteet focuses on the element of harassing, annoying, or alarming another

person, conceding that he was intoxicated in a public place. Whether a

defendant’s conduct rises to the level of being harassing, annoying, or alarming

is determined from the perspective of a reasonable person. See Morgan v. State,

22 N.E.3d 570, 577 (Ind. 2014).

[7] In Brown v. State, 12 N.E.3d 952, 954-55 (Ind. Ct. App. 2014), trans. denied, a

panel of this Court concluded there was sufficient evidence that the defendant

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1196 January 11, 2017 Page 3 of 6 harassed, annoyed, or alarmed another person where the defendant ran into a

woman on the sidewalk and kept moving while she yelled at him. In Naas, 993

N.E.2d at 1153, a panel of this Court concluded there was sufficient evidence

that the defendant harassed, annoyed, or alarmed another person where the

defendant was agitated and yelling, and he advanced toward other people in an

aggressive manner, causing them to back away. Finally, in Williams v. State,

989 N.E.2d 366, 370-71 (Ind. Ct. App. 2013), the defendant repeatedly refused

to comply with officers’ requests to get out of the street and was belligerent to

the officers, and this conduct was deemed sufficient to support a conviction for

public intoxication.

[8] By contrast, in Morgan, our Supreme Court determined there was insufficient

evidence that the defendant harassed, annoyed, or alarmed another person

where he was sleeping in a bus stop and acted agitated when an officer

awakened him. 22 N.E.3d at 579. In addition, in Milam v. State, 14 N.E.3d

879, 882 (Ind. Ct. App. 2014), a panel of this Court reversed a conviction for

public intoxication, concluding the defendant’s cursing and arguing with a

companion “in a loud tone” while they sat in a car was insufficient proof that

he harassed, annoyed, or alarmed another person.

[9] In the current case, Officers Lowcher and Cutcliff arrived at the apartment

complex in the early morning hours of March 27, 2016, to investigate a

reported assault. They saw Poteet walk around the side of a building and out of

their sight. Other people indicated that he had been involved in the situation

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1196 January 11, 2017 Page 4 of 6 that had led to the police being called. Officer Lowcher followed Poteet around

the corner.

[10] Officer Lowcher noted that Poteet was not wearing shoes and his belt and pants

were undone. She asked him to walk toward her, and she “had to tell him to

stop. Cause [sic] he was kind of rushing on a little bit.” Tr. p. 23. His hands

were “clenched” and he seemed “aggressive.” Id. at 24. When Officer

Lowcher asked him why his pants were undone, Poteet said “he was attempting

to urinate on the side of the building.” Id. at 23. She handcuffed Poteet,

escorted him to the front of the building, and had him sit on a curb.

[11] Once Poteet was seated on the curb, he became “belligerent” and “insulting,

cursing the entire time.” Id. at 9. “He would ask [the officers] the same

questions over and over. And if he wasn’t happy with the answer he would

begin yelling and cursing.” Id. Poteet yelled loudly enough that the noise could

be heard across the parking lot. He was “rather confrontational” throughout

his encounter with the officers, displaying an “abusive attitude” and an

“argumentative nature.” Id. at 9, 11. He called the officers “very colorful

names” and “just was altogether uncooperative.” Id. at 23-24. The officers

arrested Poteet after further investigation inside the apartment building.

[12] The facts of Poteet’s case are closer to the circumstances in Brown, Naas, and

Williams than the circumstances in Morgan and Milam. Poteet moved toward

Officer Lowcher in an aggressive manner, much like the defendants in Naas and

Brown. In addition, Poteet verbally abused the officers, similar to the defendant

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1196 January 11, 2017 Page 5 of 6 in Williams. The abuse was extensive and lasted for several minutes. This is

sufficient evidence from which the trial court could have concluded beyond a

reasonable doubt that Poteet harassed, annoyed or alarmed the officers.

Conclusion [13] For the foregoing reasons, we affirm Poteet’s conviction of public intoxication.

[14] Affirmed.

Robb, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1196 January 11, 2017 Page 6 of 6