Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-339| January 29, 2016 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Barbara J. Simmons

Oldenburg, Indiana

ATTORNEYS FOR APPELLANT

Gregory F. Zoeller

Attorney General of Indiana

Chandra Karis Hein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Larry Owens,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 29, 2016

Court of Appeals Case No.

49A02-1505-CR-339

Appeal from the Marion Superior 

Court

The Honorable Linda E. Brown, 

Judge

Trial Court Cause No.

49G10-1412-CM-56405

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-339| January 29, 2016 Page 2 of 7

Statement of the Case

[1] Larry Owens appeals his two convictions for public intoxication, both as Class 

B misdemeanors. Owens presents two issues for our review, which we restate 

as follows:

1. Whether the State presented sufficient evidence to show 

that he harassed, annoyed, or alarmed another person

while Owens was intoxicated in a public place; and

2. Whether the trial court’s entry of conviction on both 

charges violated his right to be free from double jeopardy.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[3] On December 28, 2014, Indianapolis Metropolitan Police Department Officer 

Charles Tice responded to a call from a manager of a Waffle House restaurant. 

Upon arriving at the restaurant, Officer Tice approached the manager, who 

informed Officer Tice that he had asked an employee, Owens, to leave the 

restaurant, but Owens had refused. During this conversation, Owens “kept 

trying to tell [Officer Tice] what was going on . . . .” Tr. at 8. Officer Tice 

observed that Owens “was a little unsteady on his feet and when he tried to 

interject himself he had slurred speech.” Id. Officer Tice also observed that 

“there was a smell of an intoxicating or alcoholic beverage that became worse 

as [Owens] slurred his speech . . . .” Id. And Owens had “glossed over[,] 

blood[-]shot eyes.” Id.
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[4] After speaking with the manager, Officer Tice spoke with Owens in the 

restaurant’s parking lot and instructed Owens to leave the premises. Owens 

then walked about twenty to twenty-five feet away from Officer Tice. Officer 

Tice “thought we were done,” but Owens then “balled his fist up . . . and said 

something” directed at Officer Tice. Id. at 12. Officer Tice could not 

understand what Owens was saying, but Owens was “shaking” his fist at 

Officer Tice and speaking to him in a “loud,” “angry,” and “forceful sounding” 

voice. Id. at 12, 20. Customers of the Waffle House “were coming in and 

out . . . and trying not to pay any attention” to the incident. Id. at 13. Officer 

Tice then arrested Owens.

[5] The State charged Owens with two counts of public intoxication, both as Class 

B misdemeanors. Count I alleged that Owens had committed Class B 

misdemeanor public intoxication when he was intoxicated in a public place and 

“was harassing, annoying[,] or alarming” others. Appellant’s App. at 11. 

Count II alleged that Owens had committed Class B misdemeanor public 

intoxication when he was intoxicated in a public place and “breached the peace 

or was in imminent danger of breaching the peace.” Id. After a bench trial, the 

court found Owens guilty as charged and entered judgment of conviction 

against Owens on both counts. The court then sentenced Owens to concurrent 

180-day terms. This appeal ensued.
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Discussion and Decision

Issue One: Sufficiency of the Evidence

[6] We first consider Owens’ argument on appeal that the State failed to present 

sufficient evidence to support Count I, public intoxication, as a Class B 

misdemeanor, for having harassed, annoyed, or alarmed another person while 

Owens was intoxicated in a public place.

1 Our standard of review for 

sufficiency of the evidence claims is well-settled. Tobar v. State, 740 N.E .2d 

109, 111 (Ind. 2000).

In reviewing the sufficiency of the evidence, we examine only the 

probative evidence and reasonable inferences that support the 

verdict. We do not assess witness credibility, nor do we reweigh 

the evidence to determine if it was sufficient to support a 

conviction. Under our appellate system, those roles are reserved 

for the finder of fact. Instead, we consider only the evidence 

most favorable to the trial court ruling and affirm the conviction 

unless no reasonable fact-finder could find the elements of the 

crime proven beyond a reasonable doubt.

Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations and internal 

quotation marks omitted).

[7] In order to prove public intoxication, as alleged in Count I, the State was 

required to show beyond a reasonable doubt that Owens was in a public place 

in a state of intoxication and Owens harassed, annoyed, or alarmed another 

 

1

 As discussed below, the State concedes that the trial court’s entry of conviction against Owens on both 

Count I and Count II violated Owens’ double jeopardy rights. As such, we need not consider Owens’ 

additional argument that the State failed to present sufficient evidence to support its charge under Count II.
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person. Ind. Code § 7.1-5-1-3(a)(4) (2012). Owens does not dispute that he was 

in a public place while intoxicated. Rather, he questions only whether the State 

demonstrated that he harassed, annoyed, or alarmed another person. As our 

supreme court has recently explained: “Indiana has historically recognized that 

the purpose of the public intoxication statute is to protect the public from the 

annoyance and deleterious effects which may and do occur because of the 

presence of persons who are in an intoxicated condition.” Morgan v. State, 22 

N.E.3d 570, 576 (Ind. 2014) (internal emphasis and quotation marks omitted). 

To determine whether one harasses, annoys, or alarms another person, we 

consider whether a reasonable person under the circumstances would have felt 

harassed, annoyed, or alarmed by the defendant’s behavior. Id. at 577 n.10.

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

held as follows:

the facts do demonstrate that Brown was harassing, annoying, or 

alarming another person per section (a)(4) of the public 

intoxication statute. According to Officer McAtee, Brown did 

not seem attentive to his surroundings. Brown walked directly 

into a woman on the street, and she began yelling at him 

immediately. As the trial court described the situation, “[it] was 

a little more than just a bumping into. He came out of the bar 

and ran into her and she went and got very upset enough to draw 

this officer’s attention.” After running into the woman, Brown 

continued walking and ignored Officer McAtee’s requests to 

stop. The evidence, which demonstrates that Brown was entirely 

unaware of his surroundings and that the woman “start[ed] going 

berserk” after he walked into her, is enough to allow a reasonable 

trier of fact to infer that Brown harassed, annoyed, or alarmed 

the woman by bumping into her in his intoxicated state.
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(Internal citations omitted; alterations in original.)

[9] Similarly here, Owens arrived to work intoxicated. He refused to leave when 

his manager told him to do so. When Officer Tice arrived and spoke to the 

manager, Owens, obviously intoxicated, repeatedly attempted to interject 

himself into the conversation. After Officer Tice persuaded Owens to leave the 

premises, Owens, from about twenty to twenty-five feet, balled up his fist and 

shook it at Officer Tice. He then began to angrily yell at Officer Tice. 

Although Officer Tice could not understand what Owens was saying, Owens 

was loud enough to attract the attention of customers going to and from the 

Waffle House, and those customers were, as Officer Tice observed, “trying not 

to pay attention” to Owens. Tr. at 13. A trier of fact was free to conclude that, 

on those facts, a reasonable person would have felt harassed, annoyed, or 

alarmed by Owens’ behavior. As such, we affirm his conviction under Count I.

Issue Two: Double Jeopardy

[10] Owens next asserts that the entry of judgment against him on both Count I and 

Count II violated his right to be free from double jeopardy under Indiana law. 

Although the State disagrees with the grounds on which Owens bases his 

argument on appeal, the State concedes Owens’ conclusion that the entry of 

judgment against him on both Count I and Count II violated Owens’ right to be 

free from double jeopardy under the actual evidence test of Article 1, Section 14 

of the Indiana Constitution. See Richardson v. State, 717 N.E.2d 32, 49 (Ind. 

1999); see also Appellee’s Br. at 11 n.4, 14 (“since these distinct facts supporting 

the separate counts were not parsed out for the trier of fact during closing 
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argument, an actual evidence issue exists, and the State acknowledges that 

remand would be appropriate.”). Having reviewed the record, we agree with 

the State’s concession and rationale. As such, we reverse Owens’ conviction for 

public intoxication as charged under Count II, and we remand with instructions 

that the trial court vacate its judgment of conviction against Owens under that 

count.

[11] Affirmed in part, reversed in part, and remanded with instructions.

Riley, J., and May, J., concur.