ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SHARON L. WRIGHT STEVE CARTER
Frankton, Indiana Attorney General of Indiana
CHRISTOPHER L. LAFUSE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JESSE B. WRIGHT, )
vs. ) No. 49A04-0108-CR-341
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Israel Nunez Cruz, Master Commissioner
Cause No. 49F19-0101-CM-5626
July 11, 2002
OPINION - FOR PUBLICATION
Jesse Wright appeals his conviction for public intoxication, a Class B misdemeanor.
Wright raises five issues for our review, which we restate as:
I. whether a hotel hallway constitutes a public place for purposes of the public
intoxication statute, Indiana Code Section 7.1-5-1-3;
II. whether Indiana Code Section 7.1-5-1-3 is unconstitutional on its face;
III. whether Indiana Code Section 36-8-10-10.6, which authorizes a private person employed by a
private employer to have government arrest powers, is unconstitutional;
IV. whether the evidence was sufficient to support the conviction; and
V. whether he was denied his right of appeal under the Indiana Constitution.
At approximately 3:30 a.m. on January 21, 2001, Wright and Roy Kelly entered
the Embassy Suites Hotel (Hotel). Wright asked for the room number of
a guest named Melissa, who had rented a room on the tenth floor.
Wright said that they knew her and that she was expecting them
to stay in the room. Although Wright had a cardkey, the hotel
clerk, Raylene Hardin, refused to give him the room number because he was
not listed as a registered guest.
Wright told Hardin that he would just try the doors until he found
the room and walked across the lobby toward the elevators. He was
stopped by a security guard, Jeffrey Reynolds. Wright showed Reynolds his room
key, and Reynolds took Wright back to the front desk because Wright could
not remember Melissas last name.
Wright became verbally abusive, and Reynolds informed him the police would be called
for backup. After Reynolds called his employer, Premier Security, for assistance, two
special deputies of the Marion County Sheriffs Department were dispatched to the scene.
In the meantime, Wright and Kelly were detained in the lobby.
The deputies, Rex Thompson and Paul Shepard, arrived, and Wright became verbally abusive
toward Thompson. Thompson observed that Wright smelled of alcohol, had slow and
slurred speech, and was unsteady on his feet.
The deputies escorted Wright and Kelly to Melissas room and knocked several times
on the door. The people in the room identified Wright and Kelly
as their guests. Wright became more agitated and abusive when the deputies
escorted all of the guests out of the room because they were not
registered. Thompson arrested Wright for public intoxication.
Prior to trial, Wright filed a motion to dismiss challenging the constitutionality of
the public intoxication and special deputy statutes. After a jury trial, Wright
was found guilty as charged.
I. Public Place
Wright first argues that a guest or a guest-of-a-guest of a hotel who
is in the hotel lobby or hallway is not in a public place
or place of public access as required by Indiana Code Section 7.1-5-1-3, which
provides that [i]t 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 caused by the persons use of alcohol or a controlled substance
. . . . Wright contends that because he was not in
a public place at the time of his arrest, he did not commit
the offense of public intoxication.
Our standard of review for the interpretation of statutes is de novo.
Parkview Hospital, Inc. v. v. Roese, 750 N.E.2d 384, 386 (Ind. Ct.
App. 2001), trans. denied. We review legal determinations to ascertain whether the
trial court erred in application of the law. Id. When a
statute is clear and unambiguous on its face, we may not interpret the
statute. Id. Rather, words are to be given their plain, ordinary,
and usual meaning unless a contrary purpose is clearly shown by the statute
The term public place is not defined by the public intoxication statute.
However, some cases have offered definitions of the term. An early definition
of public place is found in State v. Tincher, 21 Ind.App. 142, 51
N.E. 943, 944 (1898), which states, A public place does not mean a
place devoted solely to the use 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. Because a private residence is not usually accessible to the
neighboring public, the court reversed Tinchers conviction for being found intoxicated while attending
a party at a private residence. Id.
The word public was further defined in Peachey v. Boswell, 240 Ind. 604,
167 N.E.2d 48, 56-57 (1960), in discussing the phrase, [i]n any place accessible
to the public in the context of a gambling statute. Our supreme
Webster defines public as open to common and general use, participation, or enjoyment
of the public. It has been held that the term public place
as used in statutes pertaining to gambling includes any place which for the
time being is made public by the assemblage of people who go there
with or without invitation and without restraint.
A place may be accessible to the public for gambling notwithstanding that every
person who desires is not permitted access thereto.
It has also been held that in a case involving a prohibition law
that by public is meant that the public is invited to come to
the place and has access to it for the purpose within the scope
of the business there maintained.
Accessible to the public as used in the Act here in question has
not been defined by either of the courts of appeal of this State,
nor have we been able to find definition by the courts in other
From a consideration of the terms accessible, public, and public place, as defined
hereinabove, together with the purpose of the Act, we have concluded that the
phrase in any place accessible to the public as used in § 10-2330,
supra, means any place where the public is invited and are free to
go upon special or implied invitation a place available to all or a
certain segment of the public.
Id. at 57 (internal citations omitted) (emphasis added).
More recently, the definition has been reiterated as a place visited by many
persons, and usually accessible to the neighboring public. Martin v. State, 499
N.E.2d 273, 276 (Ind. Ct. App. 1986). We have also deemed the
term to include a place open to common and general use, participation and
enjoyment; a place accessible to the public. Price v. State, 600 N.E.2d
103, 115 (Ind. Ct. App. 1992), affd in relevant part, 622 N.E.2d 954
(Ind. 1993). What constitutes a public place has been examined in several
cases. See, e.g., Heichelbech v. State, 258 Ind. 334, 340, 281 N.E.2d
102, 106 (1972) (holding that a business establishment open to the public was
a public place or place of public resort); Miles v. State, 247 Ind.
423, 424-25, 216 N.E.2d 847, 849 (Ind. 1966) (finding person in the cab
of a truck that was parked approximately a few feet from the traveled
portion of the highway was in a public place for purposes of public
intoxication statute); Atkins v. State, 451 N.E.2d 55, 56 (Ind. Ct. App. 1983)
(finding that passenger in a vehicle on a public highway was in a
public place for purposes of public intoxication statute); Bridgewater v. State, 441 N.E.2d
688, 690 (Ind. Ct. App. 1982) (holding that person who was found
drunk in a bank parking lot at night was in a public place),
trans. denied; Cornell v. State, 398 N.E.2d 1333, 1338 (Ind. Ct. App. 1980)
(holding that where a defendant was in a car parked on a private
lane twenty to thirty feet from a public highway, he was not in
a public place).
II. Public Intoxication Statute
Wright analogizes the Hotel to an apartment building where common areas are used
to gain access to private areas, yet are not themselves public places of
public resort. Appellants Br. p. 14. In support of his argument,
he relies upon State v. Culp, 433 N.E.2d 823 (Ind. Ct. App. 1982),
trans. denied, 446 N.E.2d 969 (1983), where two men were arrested for public
intoxication after being found drunk on a common stairway in an apartment house.
We observed, [u]nlike 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. Id. at 824 (footnote omitted). Therefore, we found that the
defendants were not in a public place and reversed their convictions. Id.
We agree that there are some similarities between common areas of an apartment
complex and the hallways of a hotel. We believe, though, that there
are critical distinctions. On the one hand, residents of an apartment complex
are permanent to the extent that they have leases or month-to-month agreements with
the landlords. The facilities are residential in nature and serve as the
residents homes during the duration of their terms, and the residents reasonably expect
a certain degree of privacy in the areas immediately surrounding their apartments.
On the other hand, hotel guests are more transient and seek more temporary
housing. As a result, a hotel services numerous members of the public
on a daily basis. Whereas residents of an apartment complex may become
acquainted with their neighbors they frequently encounter in the common areas, the identities
of those staying at a hotel is constantly changing. Because of this,
hotel guests expect to enjoy little privacy outside their individual rooms and are
aware that they may encounter many unfamiliar members of the public in the
hallways and other common areas. Furthermore, invited visitors to apartment complexes are
there for the sole purpose of visiting a resident. The general public
is neither invited nor permitted to be there. Hotels, however, frequently solicit
business from the public for purposes other than providing shelter, and often invite
the public to use the dining, banquet, retail, or recreational facilities even without
staying in the hotel. The escalators, elevators, and hallways are open to
These distinctions lead us to the conclusion that the Hotel hallway was, in
fact, a public place for purposes of the public intoxication statute. As
we stated long ago in Tincher, 21 Ind.App. 142, 51 N.E. at 944,
A public place does not mean a place devoted solely to the use
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. See also Martin,
499 N.E.2d at 276. The Hotel hallway is certainly visited by many
people and is accessible to the public. The spirit of the public
intoxication statute is to prevent people from becoming inebriated and then bothering and/or
threatening the safety of other people in public places. Our supreme court
has 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. State v. Sevier,
117 Ind. 338, 340, 20 N.E. 245, 246-47 (1889). It is logical
to us that the scenario presented today, namely an intoxicated person causing a
disturbance in a hotel hallway in the middle of the night, is precisely
the genre of behavior sought to be criminalized by this statute. Therefore,
we hold that the Hotel hallway was a public place for purposes of
the public intoxication statute.
Wright claims that the public intoxication statute is unconstitutional in that it is:
vague and over broad on its face, fails to give adequate notice of
what is forbidden and what is permitted, unconstitutionally reaches a broad range of
innocent conduct, and does not provide adequate notice of the proscribed conduct; and
does not set minimal guidelines for law enforcement, but rather give [sic] officers
absolute discretion to determine what constitutes public intoxication, without standards to guard against
arbitrary deprivation of liberty.
Appellants Br. p. 16. Whether a statute is unconstitutional on its face
is a question of law. State v. Rans, 739 N.E.2d 164, 166
(Ind. Ct. App. 2000), trans. denied. Where an issue on appeal is
a pure question of law, the matter is reviewed de novo. Id.
When the validity of a statute is challenged, we begin with a
presumption of constitutionality. State v. Lombardo, 738 N.E.2d 653, 655-56 (Ind. 2000).
The burden to rebut this presumption is upon the challenger, and
all reasonable doubts must be resolved in favor of the statutes constitutionality.
A statute will not be found unconstitutionally vague if individuals of ordinary intelligence
would comprehend it adequately to inform them of the proscribed conduct. Id.
The statute need only inform the individual of the generally proscribed conduct
and need not list with exactitude each item of prohibited conduct. Id.
Finally, it is well established that vagueness challenges to statutes that do
not involve First Amendment freedoms must be examined in light of the facts
of the case at hand. Id.
The gist of Wrights challenge to the statute is that it does not
differentiate between legal intoxication and illegal intoxication, thereby giving no guidance to law
enforcement officials as to when arrests are appropriate. He opines, On its
face, the statute makes criminal all intoxication from the first sip to death
by alcohol-poisoning, including that which occurs every day as thousands of people drink
legally at public drinking establishments and in their homes, in Indianapolis and all
over Indiana. Reply Br. pp. 8-9.
Despite the fact that the public intoxication statute does not provide a specific
definition of intoxication, we do not agree with Wrights pronouncement that the
statute is unconstitutionally vague. The statute does adequately advise the public of
the proscribed conduct, namely appearing in a public place in an intoxicated state.
Furthermore, in Atkins v. State, 451 N.E.2d 55, 57 (Ind. Ct. App.
1983), we stated:
We are cognizant of the case law holding intoxicated passengers in private vehicles
are not in a public place within the meaning of public intoxication statutes
as expressed in Brown v. State, (1955) Ala., 38 Ala.App. 312, 82 So.2d
806, and Atkins v. City of Tarrant City, (1979) Ala.Cr.App., 369 So.2d 322.
However, in Indiana, the legislatures silence evidences its acquiescence in the existing
judicial interpretation of our public intoxication statute. The only change in this
statute since Miles v. State, (1966) 247 Ind. 423, 216 N.E.2d 847, was
in 1978 when the penalty was changed, making violation a class B misdemeanor.
Therefore, the judicial interpretation of our pubic intoxication statute is probative. We
are not persuaded by Wrights attempts to produce an absurd result by arguing
that a patron who has one sip of alcohol in a dining establishment
would be guilty under the statute. It is axiomatic that one sip,
or even a few sips, of alcohol would not render an ordinary person
intoxicated for purposes of the public intoxication statute.
III. Special Deputy Statute
Furthermore, the statute is not unconstitutionally vague or overbroad as applied in this
case. Thompson testified that Wright was verbally abusive and uncooperative. He
stated that Wright had red eyes, had slow and slurred speech, smelled strongly
of alcohol, and was unsteady on his feet. Thompson further testified that
after he took Wright to the tenth floor, Thompson became fearful of being
thrown over the railing. Thompson testified that based on these observations, he
believed Wright was intoxicated. These observations are similar to those made in
other cases where Indiana courts have upheld public intoxication convictions. See, e.g.,
Gamble v. State, 591 N.E.2d 142, 143 (Ind. Ct. App. 1992) (involving a
defendant who was loud and boisterous and fought with police when they arrived);
Atkins v. State, 451 N.E.2d 55, 57 (Ind. Ct. App. 1983) (involving a
defendant who was unsteady on her feet, and had an alcoholic odor about
her breath and person). Although Wright claims that his arrest was because
of his bad attitude and was in response to his exercise of his
right to protest police action, we are not convinced that his arrest and
subsequent conviction were the result of an unconstitutional application of the statute.
The special deputies were well within their authority to arrest Wright based on
their observations, and the evidence clearly supports the conviction. It is not
dispositive that Thompson arrested Wright after Wright called Thompson names. Wrights disrespect
for and offensive tirade toward the deputies was merely one indicator of intoxication
supporting his arrest and conviction. We thus conclude that the statute on
its face and as applied in this case is not unconstitutional.
Indiana Code Section 36-8-10-10.6(a) provides:
The sheriff may appoint as a special deputy any person who is employed
by a governmental entity as defined in IC 35-41-1 or private employer, the
nature of which employment necessitates that the person have the powers of a
law enforcement officer. During the term of his appointment and while he
is fulfilling the specific responsibilities for which the appointment is made, a special
deputy has the powers, privileges, and duties of a county police officer under
this chapter, subject to any written limitations and specific requirements imposed by the
sheriff and signed by the special deputy. A special deputy is subject
to the direction of the sheriff and shall obey the rules and orders
of the department. A special deputy may be removed by the sheriff
at any time, without notice and without assigning any cause.
Wright claims this statute is unconstitutional in that it permits a private person
employed by a private employer to have government arrest powers over other private
citizens, for the private benefit of private business, which is a pernicious form
of slavery. Appellants Br. p. 20. He further claims:
IV. Sufficiency of the Evidence
The Indiana Attorney General has given an opinion that special deputies under I.C.
§ 36-8-10-10.6 are at-will employees and not merit employees. Marion County Sheriff
Jack Cottey has a web site stating unequivocally that all special deputies are
political appointees. In operation, this means that the Republican Party holds the
special deputy jobs in their cache of political patronage positions, but if a
candidate from the Democratic Party wins the office of Marion County Sheriff in
the next election, the Democrats will own those political patronage jobs until unseated
by a Republican candidate. Both political parties win, and Indiana residents lose.
Nevertheless, political expediency does not make the privatization of the Sheriffs Department
by the Indiana Legislature constitutional under the U.S. Constitution, nor the Indiana Constitution.
Appellants Br. p. 23 (citation to attorney general opinion omitted).
The basis for Wrights challenge to the special deputy statute is not clear
and is unsupported by authority. The only cogent claims we glean from
his brief are that he was unlawfully detained by Hardin and Reynolds and
that the eviction of the group from the room was unlawful because there
was no warrant. Neither claim has merit.
First, we are not persuaded that Wright was unlawfully detained. Hardin and
Reynolds did not simply detain Wright as he walked through the hotel.
Wright approached the front desk in the middle of the night and asked
for the room number of a woman he claimed to be sharing a
room with but could not remember her last name. The security guards
did not become involved until Wright announced he was going up to the
tenth floor to knock on all the doors until he found his friend.
Clearly, the guards were within their authority to prevent Wright from disrupting
the hotel guests in the middle of the night. It was only
upon Wrights arguing with the security guards that further assistance was sought.
Thompson acted within his statutory authority as a special deputy because he had
probable cause to arrest Wright for public intoxication based on the evidence we
Second, to the extent Wright challenges the eviction, his argument is beyond the
scope of the issues before us today. Wrights arrest was not precipitated
by the eviction because he was not in the room at the time
of the arrest. Rather, his arrest was based on his behavior in
the public areas of the hotel. As a result, the propriety of
the eviction is irrelevant.
To prove Wright was guilty of public intoxication, the State was required to
prove that he was in a public place or place of public resort
in a state of intoxication. See Ind. Code § 7.1-5-1-3. The
trial court instructed the jury that [i]ntoxicated means under the influence of alcohol,
such that there is an impaired condition of thought and action to such
a marked degree that the intoxicated person has a significant loss of normal
physical and mental faculties.
See footnote Appendix p. 244. Wright contends the evidence
presented at trial did not establish that he was in an impaired condition.
Specifically, Wright claims the evidence merely established that he had smelled of
alcohol and that he was verbally abusive to the security guards and special
His brief, however, contains no acknowledgment of our narrow standard of review when
considering the sufficiency of the evidence. Indiana Appellate Rule 46(A)(8)(b) states that
an appellants brief must include for each issue a concise statement of the
applicable standard of review. We conclude that this failure to cite
the appropriate authority constitutes waiver of this argument.
See Johnson v. State,
693 N.E.2d 941, 954 (Ind. 1998); Jackson v. State, 758 N.E.2d 1030, 1037
(Ind. Ct. App. 2001).
Waiver notwithstanding, we are convinced that the evidence in this case is more
than sufficient to support Wrights conviction. In reviewing a claim of insufficient
evidence, we will affirm the conviction unless, considering only the evidence and reasonable
inferences favorable to the judgment, and neither reweighing the evidence nor assessing the
credibility of the witnesses, we conclude that no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt. Winn v. State,
748 N.E.2d 352, 357 (Ind. 2001). With respect to the sufficiency of
the evidence upon the element of intoxication, it is established that a non-expert
witness may offer an opinion upon intoxication, and a conviction may be sustained
upon the sole testimony of the arresting officer. Price, 600 N.E.2d at
The evidence at trial established that Wright was verbally abusive to the special
deputies, had red eyes, smelled strongly of alcohol, and was unsteady on his
feet. Based on these observations, Thompson testified he believed Wright to be
intoxicated. Thompson further testified that he began to be concerned about the
balcony railing and started to feel like he was losing control of the
situation as Wright became more agitated. This evidence is sufficient to establish
that Wright was impaired. The conviction is supported by the evidence.
V. Right to Appeal
Finally, Wright contends that he was deprived of his constitutional right to appeal.
The Indiana Constitution provides:
Court shall have no original jurisdiction, except that it may be authorized by
rules of the Supreme Court to review directly decisions of administrative agencies.
In all other cases, it shall exercise appellate jurisdiction under such terms and
conditions as the Supreme Court shall specify by rules which shall, however, provide
in all cases an absolute right to one appeal and to the extent
provided by rule, review and revision of sentences for defendants in all criminal
Ind. Const. Art. 7, § 6. Wright contends his right to appeal
was infringed upon because the court reporter did not include certain portions of
the trial when she prepared the transcript, namely voir dire, the opening and
closing statements, and final statement to the jury. He claims that the
constitutional rights of criminal defendants have been impaired:
and to some extent extinguished by the requirement that the defendant/appellant purchase a
Transcript of proceedings privately from the trial court reporter, at a cost set
by the trial court, and under rules as to transcription and computation of
cost which are unavailable to the general public or attorneys at large.
The cost is so excessive that the ordinary appellant must necessarily limit the
testimony at trial so he can pay for the Transcript if he should
be convicted. Thus, justice is not administered freely, but must be purchased
from the trial court through its appointed court reporter.
Appellants Br. p. 28. He further claims that his rights were impaired
by this courts refusal to order the court reporter to prepare the remaining
portions of the transcript.
Our appellate rules provide that the record on appeal includes all proceedings before
the trial court, regardless of whether they are transcribed. Ind. Appellate Rule
27. The rules further require that a party must make satisfactory arrangements
with the court reporter for payment of the cost of the transcript.
App. R. 9(H) (emphasis added). It is clear to us that the
court reporter and Wright had difficulty agreeing on payment arrangements for the original
transcript and the supplemental transcript sought by Wright. Wright admits in his
brief that his counsel met with the court reporter regarding the transcription of
the omitted portions of the proceedings to discuss whether to limit the Supplemental
Transcript in light of the exorbitant cost. Appellants Br. 29. Wright
argues in his brief that the supplemental transcript would have cost approximately $1000
and that the cost therefore prevents the appeal. Appellants Br. 29.
Those statements indicate that the court reporter did not flatly refuse to transcribe
the additional portions as Wright suggests, but only that she refused to do
so without additional compensation.
Wright claims that Appellate Rule 9(H) requiring parties to make satisfactory arrangements with
court reporters is unconstitutional. He references the Indiana Constitution as follows:
All courts shall be open; and every person, for injury done to him
in his person, property, or reputation, shall have remedy by due course of
law. Justice shall be administered freely, and without purchase; completely, and without
denial; speedily, and without delay.
Ind. Const. Art. 1, § 12. Apparently he contends that the setting
of excessive rates for transcription interferes with his rights under this section.
We are not persuaded by this allegation.
Indiana Administrative Rule 15 provides that any Indiana trial court may adopt one
of three model options to provide transcript preparation services to litigants. Since
this case arose in the Marion Superior Court, the transcript was apparently prepared
under Model Option One, which establishes the rate to be charged for normal,
expedited and same day transcription services. (November 25, 1998 Marion County Order
and Supreme Court Order approving same, Case No. 49S00-9812-MS-817). The approval of
this rate by the Supreme Court of Indiana serves to protect litigants from
excessive charges. In this regard, it is important to remember that Model
Option One transcript services will normally be rendered outside of the court reporters
normal working hours. This usually makes transcript preparation mandatory overtime and court
reporters should be able to expect compensation that reflects this fact. While
we are cognizant that the cost of transcript preparation can be high, we
cannot conclude that the cost infringes upon a defendants right to appeal.
Furthermore, criminal defendants in Indiana who cannot afford to pay for a transcript
are still entitled to one if they are found to be indigent.
Justice DeBruler once remarked that [f]rom the date of its admission to the
Union down to this day, Indiana has been a leader in providing indigent
persons with free access to her courts and in providing them with fair
treatment while in court. Thompson v. Thompson, 259 Ind. 266, 273, 286
N.E.2d 657, 661 (1972). This notion is echoed by the statute providing
that indigent defendants in criminal cases are entitled to a transcript:
An indigent person desiring to appeal to the supreme court or the court
of appeals from the decision of any circuit court or criminal court in
criminal cases, and not having sufficient means to procure the longhand manuscript or
transcript of the evidence taken in shorthand, by the order or permission of
any court, the court shall direct the shorthand reporter to transcribe the shorthand
notes of evidence into longhand, as soon as practicable, and deliver the same
to the indigent person. However, the court must be satisfied that the
indigent person has not sufficient means to pay the reporter for making the
longhand manuscript or transcript of evidence, and the reporter may charge such compensation
as is allowed by law in such cases for making and furnishing a
longhand manuscript, which service of the reporter shall be paid by the court
out of the proper county treasury.
Ind. Code § 33-1-4-1. Wright never claimed to be indigent and was,
therefore, not entitled to receive a free transcript.
Wright also claims that the court reporters failure to transcribe certain portions of
the record, and this courts subsequent refusal to order her to do so,
deprives him of his right to appeal. As the court reporter stated
in the Court Reporters Response to Defendants Verified Motion to Compel Reporter to
Prepare Omitted Portions of Transcripts, it is standard practice in some areas of
the state for reporters to omit voir dire and opening and closing statements
from the transcripts unless specifically requested in the Notice of Appeal. The
readily apparent reason for this practice is that those portions of the proceedings
are frequently lengthy and are typically not the basis for issues on appeal.
The omission of those portions thus saves most litigants hundreds, if not
thousands, of dollars with respect to the preparation cost of the transcript.
Those litigants who wish to raise issues requiring those portions of the proceedings
are free to specifically request that they be transcribed. In other words,
no litigant is deprived of the opportunity to raise issues contained therein if
the proper procedure for requesting the transcription is followed. Thus, the court
reporters failure to transcribe those portions was reasonable and did not infringe upon
Wrights constitutional right to appeal.
Our denial of Wrights Verified Motion for Order Compelling Trial Court Reporter to
Prepare, Certify and File Omitted Portions of Transcript, Compelling Compliance with Appellate Rule
28, and Setting Fees was likewise reasonable. In the motion, he alleged
that the matters not transcribed were directly relevant to issues on appeal.
Motion p. 3. He stated:
[T]he State argued that the only proof of intoxication required on a public
intoxication charge is that the defendant had been drinking alcohol, which supports Defendants
argument on appeal that the criminal statute is unconstitutionally vague and overly broad.
Defendant will request the Court of Appeals to review numerous such matters
argued to the jury, and will be denied a full and fair adjudication
of the issues on appeals, unless the Court Reporter is compelled to transcribe
the entire trial proceedings heard by the jury.
Motion p. 3. The allegation of error contained in the motion, even
if assumed to be true, did not amount to reversible error because the
jury was specifically instructed on the elements of the crime, including the definition
of intoxication. Therefore, any inaccuracy in the States argument with respect to
the evidence required to find Wright guilty would have been harmless error, at
best. Although generally averring to numerous such matters, Wright failed to articulate
any other errors contained in the untranscribed proceedings. We understand that without
the transcript, Wright may have been unable to set forth those errors in
great detail, but a minimal identification of the errors was necessary for us
to justify the delay and expense of ordering the court reporter to transcribe
the additional portions. Wright had the option of specifically requesting those portions
in the Notice of Appeal and yet did not do so. He
failed to present a persuasive basis for us to order the court reporter
to do so after the fact, particularly when there were questions about payment.
Wrights contention that he was not aware of the standard practice to
omit those sections does not excuse his failure to do so given that
all litigants, even pro se litigants without legal training, are required to follow
procedural rules. See Boczar v. Meridian Street Foundation, 749 N.E.2d 87, 91-92
(Ind. Ct. App. 2001) (holding pro se litigants to the same standards of
civility and professional courtesy where litigant received legal training but was not currently
in active practice as a litigator); Wright v. Elston, 701 N.E.2d 1227,
1231 (Ind. Ct. App. 1998) (reminding litigants that they are held to established
rules of procedure), trans. denied.
Wright was in a public place when he was arrested for purposes of
the public intoxication statute. That statute is not unconstitutional on it face
or as applied to Wright. The challenges Wright raises to the special
deputy statute are without merit, and the evidence supports his conviction. Finally,
his right to appeal was not infringed upon by the issues surrounding the
preparation and cost of the transcript. We affirm the conviction in all
KIRSCH, J., and MATHIAS, J., concur.
The Statement of the Case in the Appellants Brief contains not
only a recitation of the procedural posture of this case, but also comments
such as the following:
Attorney Andrea Marsh [counsel for the hotel], of Ice Miller, was also present
throughout the entire trial, and assisted the Prosecutor by, for instance assuring Raylene
Hardin [night clerk] was present to testify for the State, and was seen
speaking to the States witnesses during recess. Attorney Daniel Whitehead had withdrawn
due to a conflict of interest created by discussions with the Prosecutor and
Hotel representatives related to the civil lawsuit by his clients, the evicted Hotel
guests. Therefore, at trial the attorneys were three for the State, one
Appellants Brief p. 3 n.1. Such editorializing runs contrary to the purpose
of having a section of the brief devoted strictly to the procedural posture.
The Statement of the Facts does not comply with Appellate Rule 46(A)(6)(c),
which provides that the statement shall be in narrative form and shall not
be a witness by witness summary of the testimony. It also does
not comply with Rule 46(A)(6)(b), which compels that facts be stated in accordance
with the standard of review appropriate to the judgment or order being appealed.
The facts are not presented in the light most favorable to the
judgment. Finally, we note the general offensive and inflammatory tone to the
brief. One such comment is:
The [public intoxication] statute is mainly a tool for racism, used by the
police, prosecutors and courts, to punish poor people with jail, fines, and fees,
which force generation after generation of Blacks, Hispanics, and children without fathers to
live in poverty, impoverished by the State to create political patronage jobs.
And so the [sic] Indianas bright beginning as a land where every person
is free, has been corrupted by the descendents of the Southern slaveholders who
see in the Constitutional exception to slaverypersons convicted of crimenothing immoral, unethical, or
illegal in treating criminals as slaves. Any protest is considered the vilest
seditionspeaking the truth against the King.
Appellants Brief p. 20. Such comments do little to advance Wrights position
as to why the trial court committed reversible error or why he was
not guilty of being intoxicated in a public place and, therefore, do not
promote responsible advocacy on his behalf. For the use of impertinent, intemperate,
scandalous, or vituperative language in briefs on appeal impugning or disparaging this court,
the trial court, or opposing counsel, we have the plenary power to order
a brief stricken from our files and to affirm the trial court without
Clark v. Clark, 578 N.E.2d 747, 748 (Ind. Ct. App.
1991) (relenting from striking the entire brief out of concern for unduly punishing
the offending attorneys client); see also WorldCom Network Servs., Inc. v. Thompson, 698
N.E.2d 1233, 1237 (Ind. Ct. App. 1998) ([T]he offensive material is so interwoven
with legitimate argument that we have considered striking the entire submission. We
have chosen instead to strike only the inappropriate portions of the Thompsons petition
and brief because we do not believe the Thompsons should be denied consideration
of their appeal due to the excessive zeal of their attorneys.), trans. denied.
In the interest of evaluating the merits of Wrights issues on appeal,
we choose not to strike the briefs filed by his counsel or any
portion thereof. However, we admonish counsel to advocate more professionally in future
matters before this court or face appropriate sanctions.
Wright proposed a different instruction on intoxication, but the trial court
refused it. He claims that the refusal was erroneous. However, he
fails to provide a coherent argument challenging the denial and fails to cite
authority in support of his claim. Therefore, he has waived review of
See Ind. Appellate Rule 46A(8)(a); Diaz v. State, 753 N.E.2d 724,
730 n. 4 (Ind. Ct. App. 2001), trans. denied.