Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jun 04 2014, 9:47 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
ANDREW BEAN CHANDRA K. HEIN Certified Legal Intern Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
AUBREY THOMPSON, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1307-CR-606 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Rebekah Pierson-Treacy, Judge The Honorable Shatrese Flowers, Commissioner Cause No. 49F19-1211-CM-78764
June 4, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, Aubrey Thompson (Thompson), appeals her conviction of
public intoxication, a Class B misdemeanor, Ind. Code § 7.1-5-1-3.1
We reverse.
ISSUE
Thompson raises one issue on appeal, which we restate as: Whether there is
sufficient evidence beyond a reasonable doubt to sustain Thompson’s conviction of public
intoxication.
FACTS AND PROCEDURAL HISTORY
Shortly before 3:00 a.m. on November 18, 2012, Indianapolis Metropolitan Police
Department (IMPD) Officer Michael Reiger (Officer Reiger) was dispatched to an
apartment complex on the City’s north side in response to a domestic disturbance report.
Upon arrival, Officer Reiger observed as Denise Robinson (Robinson), who was standing
in front of her apartment building, engaged in a verbal and physical altercation with her
boyfriend, Brian Jenkins (Jenkins). Officer James Gillespie (Officer Gillespie) arrived on
the scene, and as the officers attempted to assess the situation, Robinson refused to cease
her screaming or cooperate with the investigation. After Robinson failed to heed the
officers’ warnings to stop making unreasonable noise, Officer Gillespie placed her under
arrest.
1 An oral argument was conducted on March 25, 2014, at Terre Haute South High School in Terre Haute, Indiana. We thank the attorneys for their excellent advocacy and the High School for its hospitality.
2 Robinson’s friend, Thompson, was present at the scene and had witnessed the entire
episode. Upon realizing that Robinson was being arrested and that the officers were
permitting Jenkins to stay in Robinson’s apartment, Thompson “became agitated” and
approached the officers to communicate her distaste with their decisions. (Transcript p.
10). Thompson attempted to provide Officer Gillespie and Officer Reiger with a copy of
Robinson’s lease to establish that Jenkins had no right to be in the apartment, but Officer
Gillespie instructed Thompson to go inside the apartment because she was disrupting the
investigation. Although Thompson initially complied, she returned to the parking lot a
short time later. Several more times, the officers ordered Thompson to stay inside the
apartment only for her to reappear and interrupt them. Eventually Officer Gillespie advised
Thompson “that if she did not stop disrupting the investigation [the officers] would have
her be a subject of an investigation.” (Tr. pp. 19-20).
Following her final warning, Thompson went inside the apartment but emerged
minutes later, carrying her purse, and informed the officers “that she was going to leave
the property.” (Tr. p. 11). Thompson stated that Jenkins “is a scary person” and she could
not stay at the apartment because she “was [in] fear for [her] life.” (Tr. pp. 45, 47).
Detecting an “odor of alcoholic beverage coming from her person, [along with] slurred
speech[] and bloodshot, glassy eyes[,]” the officers detained Thompson out of concern that
she would be “putting herself in danger as well as others on the road.” (Appellant’s App.
p. 14; Tr. p. 12). Thompson submitted to a portable breathalyzer test, which yielded a
blood alcohol concentration (BAC) of 0.03. At this point, Officer Gillespie placed
Thompson under arrest.
3 Later that day, the State filed an Information, charging Thompson with one Count
of public intoxication, a Class B misdemeanor, I.C. § 7.1-5-1-3. On June 27, 2013, the
trial court conducted a bench trial. At the close of the evidence, the trial court entered a
verdict of guilty and sentenced Thompson to a term of 180 days, with two days executed
and 178 days suspended, and ordered her to complete forty hours of community service.
Thompson now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
In a sufficiency of the evidence case, the standard of review is well established. We
neither reweigh the evidence nor judge the credibility of witnesses. Holbert v. State, 996
N.E.2d 396, 400 (Ind. Ct. App. 2013), trans. denied. We consider only the evidence most
favorable to the trial court’s judgment, along with any reasonable inferences that may be
drawn therefrom. Id. As long as there is substantial evidence of probative value from
which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt,
we will affirm the conviction. Id.
II. Public Intoxication Elements
Thompson claims that there is insufficient evidence to support her conviction of
public intoxication. In 2012, the General Assembly amended the public intoxication statute
(P.I. Statute) by appending four new elements to the existing statutory criteria that an
individual be intoxicated while in public. Stephens v. State, 992 N.E.2d 935, 938 (Ind. Ct.
App. 2013). The P.I. Statute provides that
4 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 or a controlled substance . . . 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.
I.C. § 7.1-5-1-3(a). In the Information, the State cited all four criteria as bases for
Thompson’s public intoxication charge. However, during the trial, the State clarified:
At no point has the State alleged that [Thompson] annoyed the police or harassed the police or even alarmed the police . . . conducting the investigation. The issue came because [Thompson] in her intoxicated state when she decided she was going to leave and grabbed her purse and tried to leave . . . . At that point the officers did what any officer would do. They became concerned for the community. They b[ecame] concerned for the safety of the citizens of Marion County[] when someone with signs of intoxication . . . could possibly [be] sitting behind the wheel.
(Tr. pp. 64-65). As such, Thompson’s conviction pivots on whether she endangered either
her own life or the life of another person. I.C. § 7.1-5-1-3(a)(1)-(2).
Thompson does not challenge the trial court’s finding that she was intoxicated or
that she was in a public place; rather, her sole contention on appeal is that there is no
evidence to support a finding that she endangered her own life or the life of anyone else.
Specifically, Thompson asserts that, by simply informing the police officers of her plan to
leave the scene, she did not manifest an intent to drive herself, and “the possibility of
driving” is insufficient to establish endangerment. (Appellant’s Br. p. 6). Additionally,
Thompson maintains that even if she did intend to drive, the possibility that she might drive
in an endangering manner “is too remote and speculative for a conviction.” (Appellant’s
Br. p. 9). On the other hand, the State contends that “[i]t was perfectly reasonable for the
5 trier of fact to infer that Thompson had the ability to drive a vehicle in an intoxicated state
and endanger herself or others.” (State’s Br. p. 5).
A. Actual Endangerment
Thompson argues that there is no evidence of endangerment because she did not
actually drive her vehicle. We first note that the term “endangers” is not defined by the
P.I. Statute. In general, statutorily undefined words are assigned their plain, ordinary, and
usual meaning. Weideman v. State, 890 N.E.2d 28, 32 (Ind. Ct. App. 2008) (citing I.C. §
1-1-4-1(c)). Consulting the dictionary, we find that “endanger” is defined as “to cause
(someone or something) to be in a dangerous place or situation”; “to bring into danger or
peril”; or “to create a dangerous situation.” MERRIAM-WEBSTER, http://www.merriam-
webster.com/dictionary/endanger (last visited Apr. 1, 2014). The policy underlying the
newly-amended P.I. Statute acknowledges the potential risk of driving a vehicle while
intoxicated. See Stephens, 992 N.E.2d at 938 (noting the purpose of the amendment is to
“encourag[e] inebriated persons to avoid creating dangerous situations by walking,
catching a cab, or riding home with a designated driver rather than driving while
intoxicated”). Thus, the question we face is whether, as the State argues, it is sufficient for
the purposes of the P.I. Statute that Thompson “created the potential that she would drive
on the roadway in an intoxicated state and endanger herself or those on or near the
roadways.” (State’s Br. p. 6).
Given the relative novelty of the amendment, the case law interpreting the P.I.
Statute in its current form is sparse. We did, however, recently address the proof required
to establish the endangerment elements. In Sesay v. State, No. 49A02-1305-CR-434, at *1
6 (Ind. Ct. App. Mar. 24, 2014), police officers arrived on the scene of a car accident to find
Sesay standing next to his car, “approximately three to five feet away from the roadway.”
Sesay, who was not driving, was intoxicated, and the officers arrested him for public
intoxication because he “was so close to the side of the road he could have been hit by a
car.” Id. In reversing Sesay’s conviction, we found that “speculation regarding things that
could happen in the future is not sufficient to prove the present crime of public intoxication.
This is not an attempt crime where the person can take a substantial step toward committing
public intoxication by being intoxicated.” Id. at *6.
In the present case, the evidence reveals that Thompson, while in public, exhibited
signs of intoxication and might have decided to drive somewhere. We could devise an
infinite number of hypotheticals in which any conduct could potentially endanger someone,
but to do so “would stretch the statute to an absurdity.” Id. We cannot base convictions
on abstract possibilities, and the fact that Thompson could have driven that night does not
demonstrate affirmative conduct causing endangerment.
Conversely, in Williams v. State, 989 N.E.2d 366 (Ind. Ct. App. 2013), we upheld a
conviction for public intoxication based on endangerment. In Williams, the defendant
refused to comply with the police officers’ orders to stand on the sidewalk rather than in
the street. Id. at 367. We found that, by standing in the street, the inebriated defendant put
himself at risk of being struck by oncoming traffic. Id. at 370. In addition, police officers
were attempting to clear the street for emergency personnel so they could attend to a
woman who had been struck by a vehicle, but because the police officers had to remove
the belligerent defendant from the street in order to protect him and to ensure that the
7 ambulance had access to the injured woman, the defendant also put the police officers at
risk of being hit by a vehicle. Id. at 367-68. Accordingly, endangerment does not
necessarily require that a person actually have been harmed. Instead, it requires actual
conduct by the defendant which places the defendant or another person in actual danger of
harm. The harm itself becomes more probable by virtue of the defendant’s conduct. See
Sesay, No. 49A02-1305-CR-434, at *8 (Bradford, J., concurring).
Thompson contends that the language of the P.I. Statute evidences the legislative
intent that the endangerment must be actual and in the present. When “interpreting a
statute, we must consider not only what the statute says but what it does not say.” Holbert,
996 N.E.2d at 402. The P.I. Statute provides that a person commits public intoxication if
he “breaches the peace or is in imminent danger of breaching the peace.” I.C. § 7.1-5-1-
3(a)(3) (emphasis added). In contrast, the endangerment provisions do not include the
“imminent danger” description, nor any other modifying language such as “might
endanger.” I.C. § 7.1-5-1-3(a)(1)-(2); Sesay, No. 49A02-1305-CR-434, at *6. Thus, while
we do not disagree with the dissent that police should not necessarily have to wait for actual
danger to manifest itself before interceding when a person is publicly intoxicated, we do
believe they need to wait for the endangering conduct to manifest itself. Thompson
announced she was going to leave the scene; however, at the point at which she was
arrested, she could have as easily walked away as driven. Any harm remained remote and
speculative—a mere possibility as opposed to a reasonable probability.
B. Endangerment in the OWI Statute
8 Notwithstanding whether Thompson actually drove, the State asserts that
Thompson’s evident intent to drive herself is precisely the conduct the P.I. Statute
endeavors to prevent. We agree that the P.I. Statute affords protection to those intoxicated
individuals who elect to walk or rely on public transportation rather than risk creating a
dangerous situation by driving, but the Indiana General Assembly, through the operating
while intoxicated (OWI) statute, has already determined that evidence of a driver’s
intoxication is not conclusive of a finding that the driver endangered anyone.
The OWI statute provides that it is a Class C misdemeanor for a person to operate a
vehicle while intoxicated. I.C. § 9-30-5-2(a); see Combs v. State, 895 N.E.2d 1252, 1258-
59 (Ind. Ct. App. 2008) (noting that, regardless of a defendant’s BAC, “the State may prove
intoxication ‘by a showing of impairment’”). The charge is elevated to a Class A
misdemeanor if the intoxicated individual “operates a vehicle in a manner that endangers
a person.” I.C. § 9-30-5-2(b). As a result, if Thompson had actually driven her vehicle
that night, she may very well have been held criminally liable for a Class C misdemeanor
OWI. However, in order to upgrade the charge to a Class A misdemeanor OWI, there
would have to be “proof of endangerment that [exceeds] mere intoxication.” Outlaw v.
State, 918 N.E.2d 379, 382 (Ind. Ct. App. 2009), opinion adopted, 929 N.E.2d 196 (Ind.
2010).2
2 We cannot agree with the dissent that evidence that a person drove while intoxicated goes beyond mere intoxication and proves endangerment for the purposes of the P.I. Statute. Such a position is inconsistent with our existing OWI law, as noted above. Regardless, there is no evidence here that Thompson drove while intoxicated or, as characterized by the dissent, even “attempted to drive while intoxicated.”
9 Likewise, in order to hold Thompson liable for public intoxication, there must be
proof that her conduct operated to endanger herself or another. As we have already stated,
Thompson did not engage in any affirmative conduct to place anyone in danger. Moreover,
because evidence of intoxication is not per se evidence of endangerment in the OWI
context, we find that, even if Thompson had elected to drive, she would have had to do
more than just shift her vehicle into gear for the State to establish endangerment under the
P.I. Statute. See id. (finding no evidence of endangerment where defendant, although
intoxicated, did not operate his vehicle in an unsafe, erratic, or unlawful manner).
Accordingly, we conclude that evidence of Thompson’s intoxication, combined with her
asserted intent to leave the premises, is insufficient to prove the crime of public intoxication
as a Class B misdemeanor.
CONCLUSION
Based on the foregoing, we conclude that the evidence is insufficient to support
Thompson’s conviction of public intoxication because the State did not establish beyond a
reasonable doubt that Thompson endangered her own life or the life of another person
while intoxicated and in public.
Reversed.
ROBB, J. concurs
BRADFORD, J. dissents with separate opinion
10 IN THE COURT OF APPEALS OF INDIANA
AUBREY THOMPSON, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1307-CR-606 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
BRADFORD, Judge, dissenting.
Because I believe the State presented sufficient evidence to support Thompson’s
public intoxication conviction, I respectfully dissent. Thompson characterizes the evidence
as establishing merely a “possibility” that she “might” drive while intoxicated. Appellant’s
App. p. 9. However, the record reveals that Thompson had driven earlier in the evening
and was sitting in her vehicle when the officers arrived at the scene. After engaging the
officers, an intoxicated Thompson retrieved her purse from Robinson’s apartment and, as
she was leaving, “advised [the officers] that she was going to be driving away.” Tr. p. 12.
This evidence establishes that Thompson attempted to drive while intoxicated, an
11 affirmative act I find endangering under Indiana Code subsections 7.1-5-1-3(a)(1) and (2).
See generally Sesay v. State, 2014 WL 1177162 *7 (Ind. Ct. App. Mar. 24, 2014)
(Bradford, J. concurring in result).
As I stated in Sesay, the plain and ordinary meaning of “endangerment”
contemplates exposure to “probable harm.” Id. (quoting WEBSTER’S THIRD NEW INT’L
DICTIONARY 748 (14th ed. 1961). Moreover, “the spirit of the public intoxication statute
is to prevent people from becoming inebriated and then bothering and/or threatening the
safety of other people in public places.” Holbert v. State, 996 N.E.2d 396, 401 (Ind. Ct.
App. 2013), trans. denied. The amended statute specifically “promotes public policy
encouraging inebriated persons to avoid creating dangerous situations [such as] driving
while intoxicated.” Stephens v. State, 992 N.E.2d 935, 938 (Ind. Ct. App. 2012), trans.
denied. Cf. Moore v. State, 949 N.E.2d 343 (Ind. 2011). Considering this legislative intent,
where an intoxicated person is attempting to drive, I do not believe the public intoxication
statute requires police to wait for her to be successful.
Thompson relies on case law interpreting Indiana’s OWI statute for the proposition
that even driving while intoxicated is insufficient to prove endangerment under Indiana’s
public intoxication statute. This argument is misguided. The inquiry in the OWI context
is whether an intoxicated driver committed an endangering act. See Vanderlinden v. State,
918 N.E.2d 642, 646 (Ind. Ct. App. 2009) (finding excessive speed sufficient). In
Vanderlinden, we explained that the distinction in the two levels of OWI, one with an
endangerment requirement and the other without, precludes the argument that “driving a
12 vehicle while intoxicated always endangers someone.” Id. at 645. Therefore, we held that
“the State is required to submit proof of ‘endangerment’ that goes beyond mere intoxication
to obtain a conviction for Class A misdemeanor OWI.” Id. at 645-46.
In the public intoxication context, the inquiry is whether a publicly intoxicated
person committed an endangering act; operating a vehicle is not an element of the offense.
Thus, when applied to the distinction in the pre- and post-amendment public intoxication
statutes, the logic of Vanderlinden correspondingly precludes the argument that being
publicly intoxicated—as opposed to driving while intoxicated—always endangers
someone. Evidence that a person drove while intoxicated, therefore, “goes beyond mere
intoxication” and can be sufficient to prove endangerment under Indiana Code subsections
7.1-5-1-3(a)(1) and (2).
For the foregoing reasons, I would affirm the judgment of the trial court.