Danish Pulido v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: September 12, 2019
• Docket: 19A-CR-834
• Status: Published

Opinion

FILED Sep 12 2019, 10:43 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew Stebbins Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Josiah Swinney Deputy Attorney General Michael Sherman Certified Legal Intern Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Danish Pulido, September 12, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-834 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Steven Rubick, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G10-1803-CM-008898

Pyle, Judge.

Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019 Page 1 of 12 Statement of the Case [1] Danish Pulido (“Pulido”) appeals his conviction, following a bench trial, for

Class B misdemeanor public intoxication.1 Pulido argues that there was

insufficient evidence to support his conviction, specifically challenging the

endangerment element. Concluding that the State failed to prove beyond a

reasonable doubt that Pulido endangered his own life as required by the public

intoxication statute, we reverse his conviction.

[2] We reverse.

Issue Whether sufficient evidence supports Pulido’s conviction.

Facts [3] On March 10, 2018, Indianapolis Metropolitan Police Department Officer

Danielle Lewis (“Officer Lewis”) responded to a dispatch from an anonymous

9-1-1 caller who had reported that a “male subject was staggering . . . on[] the

sidewalk” and was “walking adjacent to the city street.” (Tr. 3, 4). The officer

went to an intersection near “West 30th Street and Muslim Drive” and noticed a

man, later identified as Pulido, who “was staggering[.]” (Tr. 3, 4). The officer

yelled for Pulido to stop, and he did. At that point, Pulido had “a hard time

maintaining a balance while standing straight[,] . . . was kind of swaying while

1 IND. CODE § 7.1-5-1-3.

Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019 Page 2 of 12 standing[, and] had to keep using his arms to regain his balance.” (Tr. 4).

Officer Lewis “also noticed that he had red glassy eyes, and slurred speech.”

(Tr. 4). She “believed” that Pulido was “heavily intoxicated.” (Tr. 5). The

officer asked Pulido “if he was okay, . . . where he was headed to[], [and] where

he lived[,]” and Pulido “told [her] that he did not know any of those things.”

(Tr. 4). Officer Lewis “was worried about his welfare” and asked Pulido if

“there was somebody that [she] could call to come pick him up[.]” (Tr. 4).

Pulido “said he did not because he was quote ‘so drunk right now[.]’” (Tr. 4).

Officer Lewis then arrested Pulido.

[4] The State charged Pulido with Class B misdemeanor public intoxication. The

charging information alleged, in relevant part, that Pulido had “endangered his

life” under INDIANA CODE § 7.1-5-1-3(a)(1). (App. Vol. 2 at 12). On March

15, 2019, the trial court held a bench trial, and the State presented one witness.

Officer Lewis testified to the facts set forth above. During the officer’s

testimony, Pulido’s counsel raised a hearsay objection when Officer Lewis

testified that she had been dispatched to the scene based on an anonymous 9-1-

1 caller who had reported that a male was staggering on the sidewalk. The trial

court overruled the objection, stating that the “nature of the 9-1-1 call [wa]s

admissible.” (Tr. 3).

[5] During closing arguments, the State argued that it had “met its burden” and

had shown “actual danger” based on “the 9-1-1 call[.]” (Tr. 5). Pulido’s

counsel again objected, arguing that the 9-1-1 call could not be used as

substantive evidence, and the trial court sustained his objection. The State then

Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019 Page 3 of 12 argued that Pulido’s “own statement[s] that he did not know where he was

going” and “did not know who to call” had “met the element of

endangerment[.]” (Tr. 5-6).

[6] Pulido’s counsel cited to Sesay v. State, 5 N.E.3d 478 (Ind. Ct. App. 2014) and

Davis v. State, 13 N.E.3d 500 (Ind. Ct. App. 2014) and argued that the State had

failed to prove the endangerment element because there was no evidence that

Pulido had “actually endangered himself.” (Tr. 6). Pulido’s counsel pointed

out that “there was no evidence that [Pulido] . . . was ever in any danger of

being hit by a vehicle or of hurting himself in any way.” (Tr. 6). He also

argued that the evidence, which showed merely that Pulido was staggering on a

sidewalk, was “not enough . . . to prove endangerment.” (Tr. 6).

[7] The trial court found Pulido guilty as charged. When entering its verdict, the

trial court specifically addressed Pulido’s argument regarding the evidence of

the endangerment as follows: “The officer testified the young man [Pulido] was

staggering next to a city street, Court finds that satisfies the obligation of

proving endangerment.” (Tr. 6). The trial court imposed a 180-day sentence

with 178 days suspended and credit for time served. Pulido now appeals.

Decision [8] Pulido argues that the evidence was insufficient to support his conviction for

Class B misdemeanor public intoxication. He does not challenge the evidence

that he was intoxicated in a public place. His sole argument is that the State

failed to prove beyond a reasonable doubt that he had endangered his life.

Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019 Page 4 of 12 [9] Our standard of review for challenges to the sufficiency of the evidence is well

settled.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder would find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

and citations omitted) (emphasis in original). Additionally, our Indiana

Supreme Court has explained that “when determining whether the elements of

an offense are proven beyond a reasonable doubt, a fact-finder may consider

both the evidence and the resulting reasonable inferences.” Thang v. State,

10 N.E.3d 1256, 1260 (Ind. 2014) (emphasis in original).

[10] In 2012, our legislature amended the public intoxication statute, INDIANA

CODE § 7.1-5-1-3, “to add the four conduct elements to the definition of public

intoxication so that it is no longer a crime to simply be intoxicated in public.”

Milam v. State, 14 N.E.3d 879, 881 (Ind. Ct. App. 2014). See also Stephens v.

State, 992 N.E.2d 935, 938 (Ind. Ct. App. 2013). The amended public

Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019 Page 5 of 12 intoxication statute in effect at the time of Pulido’s crime, provided, in relevant

part, as follows:

. . . it is a Class B misdemeanor for a person to be in a public place . . . 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.

I.C. § 7.1-5-1-3(a). Our supreme court explained that “[t]he legislature’s

modifications to the Public Intoxication statute were in apparent response to

th[e] [Indiana Supreme] Court’s decision in 2011 that affirmed the conviction of

an automobile passenger for Public Intoxication.” Thang, 10 N.E.3d at 1260

(citing Moore v. State, 949 N.E.2d 343 (Ind. 2011)). The purpose of the

additional conduct elements in INDIANA CODE § 7.1-5-1-3(a)(1)-(4) 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.’” Davis v. State, 13

N.E.3d 500, 502-03 (Ind. Ct. App. 2014) (quoting Sesay v. State, 5 N.E.3d 478,

481 (Ind. Ct. App. 2014), trans. denied) (emphasis added).

[11] Here, the State charged Pulido with public intoxication under subsection (a)(1),

alleging that Pulido had endangered his own life. Pulido contends that there

Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019 Page 6 of 12 was no evidence that he had endangered his life while walking on the sidewalk

while in an intoxicated state. Pulido challenges the trial court’s conclusion that

that State had shown that he had endangered his life based on the officer’s

testimony that “Pulido ‘was staggering next to a city street[.]’” (Pulido’s Br. 5)

(quoting Tr. 6). Pulido points out that there was no evidence that he had

walked into the street or he had fallen or hurt himself. As he did at the bench

trial, Pulido relies on Sesay and Davis to support his argument that there was

insufficient evidence that he had endangered his life.

[12] In Sesay and Davis, we reversed each defendant’s public intoxication conviction

based on insufficient evidence that the defendant had endangered his life as

required under subsection (a)(1) of public intoxication statute. In Sesay, the

intoxicated defendant was standing three to five feet from the roadway near

where his vehicle had gone into a drainage ditch. The officer dispatched to the

scene testified that “he was alarmed for [the defendant’s] safety if he were to

leave him alone.” Id. at 479. The officer “felt” that the defendant was “a

danger to himself” based on the facts that he “could barely standup without

assistance, . . . it was 3:00 a.m. so bars were closing, there was not a great deal

of street lighting in the area, and [the defendant] was so close to the side of the

road [that] he could have been hit by a car.” Id. (internal quotation marks

omitted). The officer “did not see [the defendant] in the road at any point and

there was no evidence [that] he [had] ever [been] in a position such that a car

traveling lawfully on the road could have hit him where he stood.” Id. When

reversing the defendant’s public intoxication conviction, we rejected the State’s

Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019 Page 7 of 12 argument that the defendant “could have fallen into the road or been hit by a

car.” Id. at 485 (emphasis added). We explained that “it is the conduct of the

intoxicated person that must cause the endangerment” and held that

“speculation regarding things that could happen in the future is not sufficient to

prove the present crime of public intoxication.” Id. (emphasis in original).

[13] In Davis, the police arrived at the scene “[e]arly in the morning” and found the

defendant in an apartment’s grassy common area. Davis, 13 N.E.3d at 501.

This area was near a “busy” two-lane road that had “no sidewalks or shoulders

abutting the roads” and that had poor lighting. Id. at 502. The defendant had

slurred speech, bloodshot eyes, “smelled heavily of alcohol,” had stumbled

when walking, and had to be propped up against a patrol car by the police. Id.

At trial, the arresting officer testified that he “feared that if he allowed [the

defendant] to walk away, [he] would be struck by a car.” Id. On appeal, the

State argued that the defendant had endangered his life because he had been

walking “near the road” and “was in danger of being struck by a car if he left

the apartment complex.” Id. at 503, 504. Our Court reversed the defendant’s

public intoxication conviction, explaining that the State’s argument that the

defendant would be in danger of being struck by a car if had been allowed to

keep walking was “merely speculative” and holding that the “State may not

convict [a defendant] for what would or could have happened.” Id. at 504

(emphasis added).

[14] In response to Pulido’s sufficiency challenge, the State contends that Pulido

“created a dangerous situation” by “his inability to maintain his balance as he Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019 Page 8 of 12 walked adjacent to a roadway,” (State’s Br. 7), and that “Officer Lewis’s

testimony about Pulido’s behavior is enough to sustain Pulido’s conviction.”

(State’s Br. 5). The State asserts that “Pulido placed himself in a situation

where each drunken step could have placed him on a city street, endangering his

life.” (State’s Br. 5) (emphasis added). The State rationalizes Pulido’s

conviction for public intoxication by suggesting that Officer Lewis brought

Pulido to “safety” and “[p]rotect[ed] Pulido from this danger” of potentially

wandering into the street by arresting him instead of “allow[ing] Pulido to

continue aimlessly stumbling alongside the road[.]” (State’s Br. 7).

[15] The public intoxication statute neither defines the term “endangers the person’s

life” nor the general term of endangerment. Our Court, in Davis and Sesay,

reviewed the language of the statute and various public intoxication cases in an

effort to interpret the meaning. “Noting that the [public intoxication 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.’” Davis, 13 N.E.3d at 503 (quoting Sesay, 5 N.E.3d at 485-86)

(emphasis in original). We also recognized that the legislature had not included

language suggesting future or conditional conduct in subsection (a)(1) of the

public intoxication statute (“endangers the person’s life”) as it had included in

subsection (a)(3) of the statute (“breaches the peace or is in imminent danger of

breaching the peace”). See Sesay, 5 N.E.3d at 486. When synthesizing the

various public intoxication cases, our Court noted:

Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019 Page 9 of 12 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 . . . 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.

Davis, 13 N.E.3d at 503 (emphasis added).

[16] Here, Officer Lewis testified that Pulido was staggering on the sidewalk next to

a city street when she encountered him. Officer Lewis provided no testimony

regarding the presence of traffic along that street at the time of their encounter.2

The officer ordered Pulido to stop, and he complied with the order. Once

Pulido stopped, the officer observed that he had slurred speech, red glassy eyes,

and difficulty maintaining his balance. Additionally, Pulido told the officer that

he did not know the answer to her questions about where he lived and where he

was going.

2 Nor is there any evidence of the time of day that the officer encountered Pulido.

Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019 Page 10 of 12 [17] It is undisputed that Pulido was intoxicated in a public place. The State,

however, did not present any evidence of Pulido’s past or present conduct or

action that endangered his life. See Davis, 13 N.E.3d at 503. We reject the

State’s argument that the evidence was sufficient to support his conviction

because Pulido’s act of being intoxicated while on the sidewalk “created a

dangerous situation.” (State’s Br. 7). The statute required that the State prove

that Pulido “endanger[ed] [his] life[.]” I.C. § 7.1-5-1-3(a)(1). We also reject the

State’s suggestion that we should affirm Pulido’s public intoxication conviction

based on Officer Lewis’ attempt to protect Pulido from any future, potential

harm of walking in the street and getting struck by a car. The State’s argument

is “merely speculative, not proof beyond a reasonable doubt.” See Davis, 13

N.E.3d at 504. Indeed, as we have previously warned:

If it is sufficient to speculate about all the various things that might befall a person, then, again, the legislature’s addition of endangerment as an element would be rendered superfluous because there is virtually no scenario in which a person in a public place would not be found guilty of public intoxication for simply being intoxicated. Such a construction would stretch the statute to an absurdity.

Sesay, 5 N.E.3d at 486 (emphasis in original). Given the evidence presented

during Pulido’s bench trial and the specific language of subsection (a)(1) of the

public intoxication statute as set forth by our legislature, we conclude that the

State failed to prove beyond a reasonable doubt that Pulido had endangered his

own life. See, e.g., Davis, 13 N.E.3d at 503-04; Sesay, 5 N.E.3d at 486.

Accordingly, we reverse his public intoxication conviction.

Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019 Page 11 of 12 [18] Reversed.

Robb, J., and Mathias, J., concur.

Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019 Page 12 of 12