APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Reuben B. Hill, Judge. The Honorable David Hooper, Master Commissioner. Cause No. 49F18-1208-FD-60696.
ATTORNEY FOR APPELLANT: SUZY ST. JOHN, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; GEORGE P. SHERMAN, Deputy Attorney General, Indianapolis, Indiana.
RILEY, Judge. VAIDIK, C.J. and MAY, J. concur.
STATEMENT OF THE CASE
Appellant, Rodregus J. Morgan (Morgan), appeals his conviction for public intoxication, a Class B misdemeanor, Ind. Code § 7.1-5-1-3, and disorderly conduct, a Class B misdemeanor, I.C. § 35-45-1-3(a).
We affirm in part and reverse in part.
Morgan raises three issues on appeal, two of which we find dispositive and restate as the following:
(1) Whether Indiana's public intoxication statute is unconstitutionally vague; and
(2) Whether there is sufficient evidence to sustain Morgan's conviction for disorderly conduct.
FACTS AND PROCEDURAL HISTORY
On the morning of August 31, 2012, Officer Brycen Garner (Officer Garner) of the Indianapolis Metropolitan Police Department (IMPD) was working for his part-time employer, IndyGo Bus Service. While stationed at a bus stop located on Ohio Street in Indianapolis, Indiana, Officer Garner overheard yelling coming from inside the plexiglass bus shelter. For a few minutes, Officer Garner observed as Morgan slept on the shelter's bench while Morgan's brother yelled for him to wake up. Having become " concerned for the welfare" of Morgan, Officer Garner, who was dressed in his IMPD uniform, exited his IMPD patrol vehicle and approached the men. (Transcript p. 10). At the time, Morgan and his brother were the only two individuals occupying the bus shelter. As Officer Garner entered the shelter, he detected the odor of alcohol, and Morgan's brother explained to Officer Garner that " he was trying to awake his brother." (Tr. p. 12). Officer Garner tapped Morgan's shoulder, to which Morgan, who is diagnosed as suffering from sleep apnea, " raised his head up, looked at [Officer Garner], and sad, 'Get off of me.'" (Tr. p. 13). Morgan dropped his head back down, and Officer Garner informed him that he needed to vacate the bus shelter.
After three or four requests from Officer Garner that Morgan exit the shelter, Morgan, who " seemed very agitated" and " angry in  demeanor," eventually stood up. (Tr. p. 14). As Morgan stood, Officer Garner discerned that the odor of alcohol was " emitting from [Morgan's] breath and body." (Tr. p. 14). Officer Garner also observed that Morgan's eyes were bloodshot and glassy, and " Morgan was unsteady on his feet . . . he wasn't stumbling but he was swaying from side to side." (Tr. p. 14). Believing Morgan to be intoxicated, " coupled with the fact that . . . his behavior was annoying," Officer Garner placed Morgan under arrest and escorted him to the patrol vehicle to complete the arrest paperwork and conduct a search incident to arrest. (Tr. p. 15). During this time, Morgan " continued to yell and bring undue noise to himself and attention to himself, all the way across the street and at [Officer Garner's] vehicle" and asked Officer Garner if he was " happy with [himself] for locking a brother up[.]" (Tr. pp. 28-29). Officer Garner provided Morgan with multiple warnings " to stop making unreasonable noise and yelling[,]" but Morgan " just continued on this path of saying that he didn't do anything wrong, just very loud and very agitated." (Tr. pp. 28-29). While waiting for a police vehicle to arrive to transport Morgan, Morgan--erroneously believing that he and Officer Garner had been classmates--told Officer Garner " that he was going to kick [his] ass like he did in high school." (Tr. p. 30).
The same day, the State filed an Information charging Morgan with Count I, intimidation, a Class D felony, I.C. § 35-45-2-1(b); Count II, public intoxication, a Class B misdemeanor, I.C. § 7.1-5-1-3; and Count III, disorderly conduct, a Class B misdemeanor, I.C. § 35-45-1-3(a). Morgan waived his right to a jury trial, and on April 4, 2013, the trial court conducted a bench ...