Weaver v. State

Rochelle WEAVER v. STATE of Arkansas

CR 96-472                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 30, 1996


1.   Criminal law -- public intoxication -- definition of "public
     place" speaks only in terms of accessibility. -- Under Ark.
     Code Ann.  5-71-101(6) (Repl. 1993), the term "public place"
     is defined as "a publicly or privately owned place to which
     the public or substantial numbers of people have access"; the
     definition speaks only in terms of accessibility, not
     visibility.

2.   Criminal law -- public intoxication -- pickup truck parked in
     side yard of private residence was not place to which public
     had access -- appellant's drinking-in-public conviction
     reversed and dismissed. -- Where it was undisputed that
     appellant was attending a private party at a privately owned
     residence and was drinking a beer while seated on the tailgate
     of a pickup truck that was parked in the side yard of the
     residence, the supreme court could not agree that this was a
     place to which the public or substantial numbers of people had
     access; the supreme court, holding that the trial court erred
     in failing to dismiss appellant's case, reversed and dismissed
     appellant's drinking-in-public conviction.


     Appeal from Washington Circuit Court; William Storey, Judge;
reversed and dismissed.
     Everett, Shemin, Mars & Stills, by: John C. Everett, for
appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     Bradley D. Jesson, Chief Justice.
     The appellant, Rochelle Weaver, was convicted of drinking in
public, Ark. Code Ann.  5-71-212(c) (Repl. 1993), sentenced to
thirty days in jail, and ordered to pay a $100.00 fine.  The jail
sentence and all but twenty-five dollars of the fine were suspended
for one year.  Appellant essentially claims that the trial court
should have dismissed her case because she was not drinking in a
"public place" within the meaning of the drinking-in-public
statute.  We agree with her argument and reverse and dismiss.  In
so holding, it is unnecessary for us to reach appellant's remaining
argument that the statute is unconstitutionally vague.
     The relevant facts are not in dispute.  On September 30, 1995,
at approximately 12:30 a.m., Officer Randy Nichols responded to a
complaint of a loud private party at a residence on Sam Street in
Johnson, Arkansas.  Upon his arrival, he observed ten to twelve
people in the front yard of a private residence.  Two males and two
females, including the appellant, Rochelle Weaver, walked to the
back of a small pickup truck that was parked in the side yard of
the residence.  Appellant, who was over the age of twenty-one, was
seated on the tailgate drinking a bottle of Bud Light beer.  She
was not intoxicated.  Officer Nichols approached appellant and
arrested her for drinking in public.  Appellant was convicted of
the offense in municipal court and appealed to circuit court. 
Following a bench trial, appellant was again found guilty as
charged.  This appeal followed.      
     Appellant first alleges that the trial court should have
dismissed the drinking-in-public charge because she was not
drinking in a "public place" within the meaning of the statute. 
The drinking-in-public statute, Ark. Code Ann.  5-71-212(c) (Repl.
1993), reads as follows:
          A person commits the offense of drinking in public
     if that person consumes any alcoholic beverages in any
     public place, on any highway, or street, or upon any
     passenger coach, streetcar, or in or upon any vehicle
     commonly used for the transportation of passengers, or in
     or about any depot, platform, waiting station or room, or
     other public place other than a place of business
     licensed to sell alcoholic beverages for consumption on
     the premises. 

(Emphasis added.) 
     While we have not had occasion to interpret the term "public
place" as used in the above statute, we have had at least one
opportunity to interpret the term as used in the old public-
intoxication statute, then Ark. Stat. Ann.  48-943 (Repl. 1964). 
In Berry v. City of Springdale, 238 Ark. 328, 381 S.W.2d 745
(1964), we held that Berry, who was seated in a vehicle parked on
a highway right-of-way approximately ten to twenty-five feet from
the paved surface of the road, was in a "public place."  In so
holding, we referred to the Webster's Dictionary definition of
"public" as "a place accessible or visible to all members of the
community."  Id. at 330. (Emphasis added.)     
     While the Berry case defined "public place" in terms of
accessibility and visibility, that case was decided before the
Criminal Code became effective on January 1, 1976.  The applicable
chapter in the Code defines the term "public place" as "a publicly
or privately owned place to which the public or substantial numbers
of people have access."  Ark. Code Ann.  5-71-101(6) (Repl. 1993)
(Emphasis added.)  In short, the Code definition speaks only in
terms of accessibility, not visibility.  The question thus becomes
whether the public or substantial numbers of people had access to
the place where appellant was drinking her beer, not whether
appellant was drinking in an area that was visible to the public.
     Many courts have recognized that a private residence is not a
public place within the purview of statutes prohibiting
intoxication in a public place. 45 Am. Jur. 2d Intoxicating Liquors
 36 (1969 and Cum. Supp. 1996).  See also Royster v.State, 643 So. 2d 61 (Fla.App. 1 Dist. 1994) (front porch of appellant's
residence is not a public place); Moore v. State, 634 N.E.2d 825
(Ind.App. 4 Dist. 1994)(back yard of a private residence is not a
public place); Haynes v. State, 563 N.E.2d 159 (Ind.App. 2 Dist.
1990)(area "off" a porch of a private residence is not a public
area); Commander v. State, 748 S.W.2d 270 (Tex.App.-Houston [14th
Dist.] 1988)(neither a private residence nor its yard or driveway
is a public place).  At least one commentator has observed that
private homes have not ordinarily been regarded as public "even
though in some instances a number of persons are gathered there for
one reason or another."  C.L. Feinstock, Annotation, Location of
Offense as "Public" Within Requirement of Enactments Against
Drunkenness, 8 A.L.R.3d 930 (1966 and Supp. 1996).
     In this case, it was undisputed that appellant was attending
a private party at a privately owned residence.  She was drinking
a beer on the tailgate of a pickup truck that was parked on the
side yard of this residence.  Because we cannot agree that this was
a place to which the public or substantial numbers of people had
access, we hold that the trial court erred in failing to dismiss
appellant's case.   
     Reversed and dismissed.