Clyde Davis v. State of Indiana

Jul 17 2014, 6:21 am
FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RUTH JOHNSON GREGORY F. ZOELLER
BARBARA J. SIMMONS Attorney General of Indiana
Marion County Public Defender Agency
Indianapolis, Indiana
JESSE R. DRUM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CLYDE DAVIS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1311-CR-938
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Linda E. Brown, Judge
The Honorable Christina Klineman, Commissioner
Cause No. 49F10-1308-CM-50927
July 17, 2014
OPINION - FOR PUBLICATION
KIRSCH, Judge
Clyde Davis appeals from his conviction for Class B misdemeanor public
intoxication.1 On appeal, Davis contends that the State failed to provide sufficient evidence
of endangerment.2
We reverse.
FACTS AND PROCEDURAL HISTORY
On August 3, 2013, Davis was at Toni Richard’s apartment drinking alcohol with
Richard’s boyfriend. That evening, Officer Michael Wagner-Gilbert of the Indianapolis
Metropolitan Police Department responded to a call of a disturbance at Richard’s
apartment. Davis and Richard’s boyfriend had been fighting. Officer Wagner-Gilbert
instructed Davis to leave Richard’s home and not to return or else he would be arrested for
criminal trespass. Davis informed Officer Wagner-Gilbert that he would walk home, even
though his home was some distance away. Officer Wagner-Gilbert noted that Davis had
been drinking but concluded that Davis was capable of walking home safely. Officer
Wagner-Gilbert left Richard’s home without making any arrests.
Davis never left Richard’s apartment. Early in the morning of August 4, 2013,
Officer Wagner-Gilbert responded to a second call of a disturbance at Richard’s apartment.
When the officer approached in his patrol car, he observed Davis standing outside in a
grassy common area of the apartment complex. As Davis walked into the street where the
patrol car was parked, Officer Wagner-Davis saw that Davis walked with difficulty,
1
See Ind. Code § 35-7.1-5-1-3.
2
Davis also argues that the State failed to prove that he was in a public place. Because of our
disposition in this matter, we do not reach that issue.
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stumbling and tripping over his own feet. Officer Wagner-Davis and his partner held Davis
up and leaned him against the patrol car. Davis’s eyes were bloodshot, he smelled heavily
of alcohol, and he slurred his speech. Officer Wagner-Gilbert had encountered many
intoxicated people during his eleven and one-half years on the job. He concluded that
Davis was “extremely intoxicated.” Tr. at 10. The two-lane roads outside the apartment
complex were busy even at that time of the morning, there were no sidewalks or shoulders
abutting the roads, and the lighting on the roads was poor. Officer Wagner-Gilbert feared
that if he allowed Davis to walk away, Davis would be struck by a car. Officer Wagner-
Gilbert arrested Davis.
The State charged Davis with public intoxication as a Class B misdemeanor. The
trial court found Davis guilty and sentenced him to 180 days, with 178 days suspended and
credit for time served. Davis now appeals.
DISCUSSION AND DECISION
Davis argues that the State failed to prove that he endangered the lives of himself or
others for purposes of the public intoxication statute.3 Our standard of reviewing claims of
sufficiency of the evidence is well settled. When reviewing the sufficiency of the evidence,
we consider only the probative evidence and reasonable inferences supporting the verdict.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not reweigh the evidence or assess
witness credibility. Id. We consider conflicting evidence most favorable to the trial court’s
ruling. Id. We will affirm the conviction unless no reasonable fact-finder could find the
3
The State’s charging information tracked the language of the entire statute section. Appellant’s
App. at 15. However, at trial, the State argued the endangerment portions of the statute. Tr. at 38-39.
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elements of the crime proven beyond a reasonable doubt. Id. It is not necessary that the
evidence overcome every reasonable hypothesis of innocence. Id. The evidence is
sufficient if an inference may reasonably be drawn from it to support the verdict. Id. A
conviction may be based upon circumstantial evidence alone. Bockler v. State, 908 N.E.2d
342, 346 (Ind. Ct. App. 2009).
Under the former version of the public intoxication statute, to obtain a conviction
the State was required to prove only that the defendant was in a public place in a state of
intoxication. Sesay v. State, 5 N.E.3d 478, 481 (Ind. Ct. App. 2014) (citing Christian v.
State, 897 N.E.2d 503, 504 (Ind. Ct. App. 2008), trans. denied) trans. denied. However,
the new version of the public intoxication statute in effect at the time of the events relevant
here provides that:
[I]t 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:
(1) endangers the person’s life;
(2) endangers the life of another person;
(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). The purpose of the amendment is to further the public policy of
“encouraging inebriated persons to avoid creating dangerous situations by walking,
catching a cab, or riding home with a designated driver rather than driving while
intoxicated.” Sesay, 5 N.E.3d at 481 (citing Stephens v. State, 992 N.E.2d 935, 938 (Ind.
Ct. App. 2013), trans. denied.)
In this case, the State contended that Davis’s intoxication endangered his life or that
of another. Tr. 38-39. The public intoxication statute does not define the terms “endangers
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the person’s life” or “endangers the life of another person.” I.C. § 7.1-5-1-3(a). The first
case to address what constitutes endangerment under the revised statute, Williams v. State,
989 N.E.2d 366 (Ind. Ct. App. 2013), found sufficient evidence of endangerment where, at
the site of an accident, Williams refused to move out of the street despite police orders and
had to be moved by officers so that they would not be struck by traffic. Id. at 370-71.
Subsequently, we found insufficient evidence of endangerment, breach of the peace, or
harassment where an intoxicated defendant who wished to avoid an altercation at his home
walked to a convenience store to telephone the police, asking to be taken to jail. Stephens,
992 N.E.2d at 938. We found that Stephens was not guilty of public intoxication for simply
asking for help from police. Id. Likewise, in Sesay we reversed the conviction, finding
that no actual endangerment existed where Sesay, although intoxicated, was simply
standing by a roadside at the site of a car accident. Sesay, 5 N.E.3d at 485. Noting that the
statute uses the present tense “endangers” and not the conditional tense “might endanger,”
we reasoned that “speculation regarding things that could happen in the future is not
sufficient to prove the present crime of public intoxication.” Id. at 485-86 (emphasis in the
original). Recently, our Supreme Court found that the evidence permitted a reasonable
inference that the defendant had endangered the lives of himself and others by driving on
a public road while intoxicated. See Thang v. State, __ N.E.3d __, 2014 WL 2922387 * 4
(Ind. June 27, 2014).
The common thread in these cases is past or present conduct by the defendant did
or did not place life in danger. While the statute does not require that actual harm or injury
occur, some action by the defendant constituting endangerment of the life of the defendant
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or another person must be shown. This is true even where an officer testifies that the
defendant was a danger to himself or others. See, e.g., Sesay, 5 N.E.3d at 479. Were it
otherwise, citizens could be convicted for possible, future conduct. The policy behind the
current public intoxication statute is to encourage intoxicated persons to avoid danger by
walking or catching a ride rather than driving. Stephens, 992 N.E.2d at 938. Although we
acknowledge that intoxicated persons may also create danger by walking in public places,
that danger must have manifested itself in order for the State to obtain a conviction.
In the instant case there was no such past or present conduct by Davis that amounted
to endangerment of his or another’s life. Davis was highly intoxicated when the police
encountered him the second time, but he merely walked to the police car and spoke to the
officers. Although he tripped and stumbled as he walked to meet the police, he cannot be
said to have endangered his life as required by the statute. There was no evidence that he
wandered around outside by himself before the police arrived. Although the roads outside
the apartment complex were busy, poorly lit, and pedestrian unfriendly, the road where the
officers parked was within the apartment complex. Contrary to the State’s argument on
appeal that Davis endangered himself by walking “near the road,” there was no evidence
presented at trial that the road within the apartment complex posed a danger to Davis.
Appellee’s Br. at 4, 6.
In addition, Davis never left the apartment complex between the two police runs.
Although Richard testified that Davis was in the process of leaving when the police arrived
the second time, Davis made it no farther than the grassy common area of the apartment
complex. There was no evidence that Davis went anywhere near the busy, dangerous roads
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outside the apartment complex. Although the State argues that Davis was in danger of
being struck by a car if he left the apartment complex, the argument is merely speculative,
not proof beyond a reasonable doubt. Appellee’s Br. 4, 9. The State may not convict Davis
for what would or could have happened.
Reversed.
BAILEY, J., and MAY, J., concur.
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