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FOR PUBLICATION

FILED
Dec 31 2008, 9:37 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: STEVE CARTER Attorney General of Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana

ATTORNEY FOR APPELLEE: ANNA E. ONAITIS Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
STATE OF INDIANA, Appellant-Plaintiff, vs. WILLIAMS JENKINS, Appellee-Defendant. ) ) ) ) ) ) ) ) )

No. 49A04-0805-CR-260

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Barbara Collins, Judge Cause No. 49F08-0709-CM-186206

December 31, 2008 OPINION - FOR PUBLICATION VAIDIK, Judge

Case Summary The State appeals the trial courts grant of Williams Jenkins motion to suppress. Specifically, the State contends that because Jenkins, who was arrested for public intoxication and other crimes in the courtyard area of his apartment complex, was intoxicated in a public place, the trial court erred in granting his motion to suppress. We conclude that an outside, unenclosed courtyard area of an apartment complex is sufficiently distinguishable from an interior common area of an apartment building such that State v. Culp, 433 N.E.2d 823 (Ind. Ct. App. 1982), trans. denied, is not controlling. Accordingly, we find that Jenkins was in a public place and reverse the grant of his motion to suppress. Facts and Procedural History On the evening of September 9, 2007, Lawrence Police Department Officer Robert Ferguson responded to 9400 Stouffer Court, which is located in Sutton Place Apartments, to assist Indianapolis Metropolitan Police Department officers with their investigation of shots being fired. When Officer Ferguson arrived on the scene, another officer had five individuals on the ground at gunpoint. Officer Ferguson described the area where the individuals were being detained as follows: Its kind of like a courtyard, theres [sic] apartment buildings that are all around the area, its only open by a front side and back side. Theres [sic] apartment buildings on both sides with a sidewalk and grassy plots on both sides. Tr. p. 6. In addition, there is a parking lot at the end of the courtyard. Id. at 23. When Officer Ferguson first saw Jenkins, who was not one of the five people being detained, he was standing "between the buildings on the sidewalk" in the courtyard area. Id. at 7, 14. 2

Jenkins was yelling at two security guards employed by the apartment complex. Officer Ferguson approached Jenkins and told him to go back inside his apartment because they were looking for a sixth person and had not yet found the gun. Jenkins did not go inside his apartment. Instead, Jenkins told Officer Ferguson that he could not tell him what to do and that he was standing on his property. At the time of this exchange, Officer Ferguson and Jenkins were standing on the sidewalk, which was approximately fifteen to twenty feet away from the apartment building. Id. at 9. Officer Ferguson told Jenkins several more times to go inside his apartment, and each time Jenkins refused to do so. Instead, Jenkins argued with Officer Ferguson. At this point, Officer Ferguson, who had been trained in recognizing the signs of intoxication, smelled a strong odor of alcoholic beverage on Jenkins breath and observed that he had bloodshot eyes and slurred speech. Officer Ferguson then instructed Jenkins that if he did not go inside his apartment, he would arrest him for public intoxication. Jenkins then stood "straight up," "as if to challenge" Officer Ferguson. Id. at 11. Officer Ferguson then reached to place Jenkins into custody, but Jenkins jerked away. At this point, a woman tried to step in between Officer Ferguson and Jenkins. Lawrence Police

Department Officer Shawn Romeril intervened. The officers took Jenkins to the ground, where he continued to pull away from the officers and push himself up off the ground. Eventually Officer Romeril tasered Jenkins, and he was handcuffed. The State charged Jenkins with Class A misdemeanor resisting law enforcement, Class B misdemeanor public intoxication, and Class B misdemeanor disorderly conduct. Jenkins "mov[ed] to suppress," claiming that his initial arrest for public intoxication was 3

illegal because he was in a "private place." Id. at 11-12, 35. A hearing was held. At the hearing, a videotape of the events was played, starting with Officers Ferguson and Romeril walking up to Jenkins and ending with Jenkins being handcuffed. conclusion of the hearing, the trial court ruled as follows: Im granting the Motion to Suppress and my reasoning being is State v. Culp, 423 N.E.2d 823 regarding the common areas of the apartment complex. I dont like it, I dont particularly like the public definition but I have to follow the law and I believe that that is not a public place. Id. at 40. The State now appeals the trial courts grant of Jenkins motion to suppress. Discussion and Decision The State contends that the trial court erred in granting Jenkins motion to suppress. When the State appeals the trial courts grant of a defendants motion to suppress evidence, the State is appealing from a negative judgment. State v. Davis, 770 N.E.2d 338, 340 (Ind. Ct. App. 2002). Consequently, the State has the burden of At the

demonstrating to us that the evidence is without conflict and that the evidence and all reasonable inferences therefrom lead to the conclusion opposite that reached by the trial court. Id. During our review, we consider only the evidence most favorable to the judgment, and we neither reweigh the evidence nor judge the credibility of the witnesses. Id. The offense of public intoxication is governed by Indiana Code

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