Kelvin Ezell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jul 13 2016, 9:31 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. Burns Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kelvin Ezell, July 13, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1512-CR-2046
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David Certo, Judge
Appellee-Plaintiff The Honorable David Hooper,
Magistrate
Trial Court Cause No.
49G12-1509-CM-33536
Bailey, Judge.
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Case Summary
[1] Kelvin Ezell (“Ezell”) appeals his conviction for Public Intoxication,1 a Class B
misdemeanor. Ezell challenges the sufficiency of the evidence proving the
intoxication and endangerment elements of the charge. We affirm.
Facts and Procedural History
[2] On September 18, 2015, Ezell was walking westbound on the shoulder of 30th
Street toward Post Road in Indianapolis. (Tr. at 10) Responding to a dispatch,
Officer Jay Akers (“Officer Akers”) pulled behind Ezell without Ezell’s
awareness. (Tr. at 12) After getting Ezell’s attention, Officer Akers noted that
Ezell had red, glassy eyes; lacked balance; smelled of alcohol; and slurred his
speech. (Tr. at 10)
[3] Believing Ezell was intoxicated, Officer Akers asked Ezell if he had anyone to
call that could drive him home, but Ezell was unable to reach anyone. (Tr. at
11) Ezell stated he was walking to 86th Street and Michigan Road, nearly
twenty miles away. (Tr. at 11) Ezell also told Officer Akers that he was drunk.
(Tr. at 15) Due to Ezell’s apparent intoxication, his lack of balance, and his
proximity to a well-trafficked street, Officer Akers arrested Ezell. Officer Akers
did not have Ezell perform any field sobriety tests, portable breath test, or blood
1
Ind. Code § 7.1-5-1-3.
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test. (Tr. at 14) The State later charged Ezell with Public Intoxication as a
Class B misdemeanor.
[4] On November 4, 2015, a bench trial was conducted. For the State, Officer
Akers testified to his version of events, summarized above. Both Ezell and his
wife, Delisa Alvies (“Alvies”), provided the same alternative explanation to
Ezell’s apparent lack of balance. According to their testimony, Ezell
consistently limps because he needs hip surgery. (Tr. at 24, 31) Furthermore,
they both testified that Ezell was walking to a nearby gas station on the corner
of 30th Street and Mithoefer Road to meet Alvies so she could drive him home.
(Tr. at 24, 29) Also, Ezell stated he never drinks alcohol and never told Officer
Akers that he was drunk. (Tr. at 29, 30) In rebuttal, Officer Akers testified that
Ezell was walking away from the gas station where he was supposed to meet
Alvies. (Tr. at 36)
[5] The trial court convicted Ezell of Public Intoxication as a Class B misdemeanor
and sentenced him to 180 days, all suspended, 40 hours of community service,
and a fine. This appeal followed.
Discussion and Decision
[6] The Indiana Code provides that:
It 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
person’s use of alcohol . . . if the person:
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(1) endangers the person’s life;
(2) endangers the life of another;
(3) breaches the peace or is in imminent danger of breaching the
peace; or
(4) harasses, annoys, or alarms another person.
Ind. Code § 7.1-5-1-3(a). In its charging information, the State alleged that
Ezell was “found at 30th St / Post Rd, a public place or place of public resort, in
a state of intoxication caused by the person’s use of alcohol or a controlled
substance” and that Ezell endangered his life. (App. at 14)
[7] On appeal, Ezell challenges the sufficiency of the evidence to prove the
intoxication and endangerment elements. When reviewing the sufficiency of
evidence, we look to the evidence most favorable to the judgment. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). We neither reweigh evidence nor
judge the credibility of witnesses. Id. We will affirm the conviction if there is
substantial evidence such that a trier of fact could have concluded that the
defendant was guilty beyond a reasonable doubt. Id.
[8] To prove intoxication, the State may provide evidence that shows: “(1) the
consumption of a significant amount of alcohol; (2) impaired attention and
reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on breath; (5)
unsteady balance; (6) failure of field sobriety tests; and (7) slurred speech.”
Williams v. State, 989 N.E.2d 366, 369 (Ind. 2013) (quoting Vanderlinden v. State,
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918 N.E.2d 642, 644 (Ind. Ct. App 2009), trans. denied). “It does not require
proof of a Blood Alcohol Content (“BAC”) level.” Ballinger v. State, 717 N.E.2d
939, 943 (Ind. Ct. App. 1999). Officer Akers testified that Ezell lacked balance
as he walked and failed to notice the officer as he approached Ezell. Ezell also
had red and glassy eyes, smelled of alcohol, and slurred his speech. Even
without Ezell’s own admission of intoxication to Officer Akers, a reasonable
finder of fact could determine that Ezell was intoxicated.
[9] The endangerment element is a recent addition to the public intoxication
statute. Whereas the former version of this statute simply required proof that
the defendant was intoxicated in a public place, the legislature amended the law
to require “[s]omething more than mere intoxication . . . to prove a person has
committed the crime of public intoxication.” Sesay v. State, 5 N.E.3d 478, 485
(Ind. Ct App. 2014), trans. denied. This change was implemented to encourage
intoxicated people to avoid dangerous situations by walking, riding with a
designated driver, or hailing a cab. See, e.g., Davis v. State, 13 N.E.3d 500, 503
(Ind. Ct. App. 2014); Stephens v. State, 992 N.E.2d 935, 938 (Ind. Ct. App.
2013), trans. denied.
[10] Under this statute, speculation about events that could happen in the future is
not sufficient to prove public intoxication. Sesay, 5 N.E.3d at 485. The
question then becomes one of when speculative endangerment becomes actual
endangerment. Using the amended language, this Court has reversed a number
of convictions in which endangerment was speculative rather than actual:
where a person was tripping over his feet but had not yet reached the road,
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Davis, 13 N.E.3d at 501-502; where an intoxicated person was standing three to
five feet from the road after an accident, Sesay, 5 N.E.3d at 479; and where an
intoxicated person sitting at a gas station called the police to avoid going back
home, where he was being abused, Stephens, 992 N.E.2d at 937. On the other
side of the spectrum, we have affirmed convictions where a person had a loaded
bow in an area with children, Hinton v. State, — N.E.3d —, 2016 WL 771336,
*3 (Ind. Ct. App. 2016); and where a person could not stand up on his own in a
public street and had no awareness of his surroundings, Labarr v. State, 36
N.E.3d 501, 503 (Ind. Ct. App. 2015).
[11] The evidence most favorable to the judgment suggests that Ezell intended to
walk a great distance while intoxicated. He was on the shoulder of the road,
where, Officer Akers attested, there was a good amount of traffic. There was
no sidewalk upon which Ezell could walk. His balance was unstable. Also,
Ezell was unaware that Officer Akers had pulled up behind him. Given these
facts, a reasonable finder of fact could find that Ezell endangered himself by
walking alongside the road where he was found.
[12] To the extent Ezell claims he was not intoxicated nor in danger, he invites us to
reweigh the evidence and judge the credibility of the witnesses. This is a task
we will not do. As such, we find sufficient evidence supporting Ezell’s
conviction.
[13] Affirmed.
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Bradford, J., and Altice, J., concur.
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