MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 15 2019, 10:09 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Talisha R. Griffin Attorney General of Indiana Marion County Public Defender Agency Lauren A. Jacobsen Appellate Division Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Durrand Anthony Jones, November 15, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1362 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. William J. Nelson, Judge Trial Court Cause No. 49G18-1805-F6-14428
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019 Page 1 of 6 [1] Durrand Anthony Jones (“Jones”) was convicted of resisting law enforcement
by flight,1 a Class A misdemeanor, and public intoxication, 2 a Class B
misdemeanor. On appeal, he contends that the evidence was insufficient for his
public intoxication conviction because there was no evidence he was
intoxicated from a controlled substance or alcohol.3
[2] We reverse and remand.
Facts and Procedural History [3] On May 1, 2018, an unidentified person called dispatch for the Indianapolis
Metropolitan Police Department (“IMPD”) and requested a welfare check on a
man who was “staggering in and out of traffic falling down” near the
intersection of Fairfield Avenue and College Avenue in Indianapolis. Tr. Vol. II
at 9. A search was commenced by three IMPD officers who were on duty at
the time: Officer Jeremiah Heckel (“Officer Heckel”); Officer Robert Cosler
(“Officer Cosler”); and Officer Richard Faulkner (“Officer Faulkner”). Id. at 5,
9, 15. Officer Heckel spotted Jones and observed him stumble over a curb, trip
into the street, and barely avoid being struck by a passing vehicle. Id. at 13.
[4] Based on this stumble, and because from a distance Jones’s eyes appeared to be
“wide open and glossy,” Officer Heckel approached Jones. Id. at 10. Jones,
1 See Ind. Code § 35-44.1-3-1(a)(3). 2 See Ind. Code § 7.1-5-1-3(a). 3 Jones does not challenge his conviction for resisting law enforcement by flight.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019 Page 2 of 6 meanwhile, was feeling the effects of recently smoking “K.” Id. at 20-21.
Officer Heckel asked whether he could talk with Jones. Id. Jones declined
Officer Heckel’s request and continued walking. Id. at 10. Officer Heckel
continued to ask if he could talk with Jones, and Jones continued to deny this
request. Id. When Jones had crossed the street, Officer Heckel caught up to
Jones and grabbed his wrist to detain Jones. Id. Jones fought back by “forcibly
jerk[ing] his arm away” and beginning to run. Id.
[5] Meanwhile, Officer Cosler had approached Jones and Officer Heckel when
they had begun to struggle. Id. at 15. Once Jones started running, Officer
Cosler tackled him, and Jones and Officer Cosler began fighting. Id. at 15-16.
During this fight, Officer Faulkner arrived. Id. at 16. He sprayed Jones with
pepper spray, “delivered three knee strikes” to the left side of Jones’s body, and
then all three officers subdued Jones. Id.
[6] On May 3, 2018, the State charged Jones with Count I, Level 6 felony resisting
law enforcement; Count II, Class A misdemeanor resisting law enforcement by
flight; and Count III, Class B misdemeanor public intoxication. Appellant’s App.
Vol. II at 15. On May 15, 2019, the trial court held a bench trial after which
Jones was found guilty of Class A misdemeanor resisting law enforcement by
flight and Class B misdemeanor public intoxication. Id. at 11. The trial court
imposed concurrent sentences of one year for Jones’s resisting law enforcement
conviction and 180 days for his public intoxication conviction, with all time
suspended except for time Jones had already served. Id. Jones now appeals.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019 Page 3 of 6 Discussion and Decision [7] Jones claims there was insufficient evidence to support his public intoxication
conviction because there was no evidence he was intoxicated from alcohol or a
controlled substance. When we review the sufficiency of the evidence, we do
not reweigh the evidence or judge the credibility of the witnesses. McHenry v.
State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, we will affirm a conviction if
we find that any reasonable factfinder could find a defendant guilty beyond a
reasonable doubt when considering all the facts and inferences that favor the
conviction. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). The evidence
need not exclude every reasonable hypothesis of innocence, but it must support
a reasonable inference of guilt to support the verdict. Drane v. State, 867 N.E.2d
144, 147 (Ind. 2007).
[8] To obtain a conviction for Class B misdemeanor public intoxication, the State
was required to show, inter alia, that Jones was in a public place in a state of
intoxication caused by Jones’s “use of alcohol or a controlled substance . . . .”
Ind. Code § 7.1-5-1-3(a). A controlled substance is “a drug, substance, or
immediate precursor in schedule I, II, III, IV, or V under: (1) IC 35-48-2-4, IC
35-48-2-6, IC 35-48-2-8, IC 35-48-2-10, or IC 35-48-2-12, if IC 35-48-2-14 does
not apply . . . .” Ind. Code § 35-48-1-9.
[9] Jones claims there was no evidence that he was in a state of intoxication caused
by a controlled substance. He correctly observes that, at most, the evidence
shows that he was high on “K” during his encounter with the three officers. Tr.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019 Page 4 of 6 Vol. II at 19-22. However, neither the testimony of Jones nor that of the officers
identified what “K” was, and no one testified that “K” was a controlled
substance. Moreover, “K” is not identified as a “controlled substance” under
the statutes that define that term. See I.C. § 35-48-1-9; I.C. § 35-48-2-4; I.C. §
35-48-2-6; I.C. § 35-48-2-8; I.C. § 35-48-2-10; I.C. § 35-48-2-12; and I.C. § 35-48-
2-14. Notably, the State does not argue that “K” is a controlled substance, and
even concedes that when Jones admitted to being high on “K,” Jones was likely
referring to a different, unrelated case.
[10] The State goes even further by conceding the evidence was insufficient to show
that Jones was intoxicated by any substance, whether a controlled substance or
alcohol. More specifically, the State admits: 1) the only evidence of
intoxication came from Officer Faulkner’s testimony about the call from IMPD
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 15 2019, 10:09 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Talisha R. Griffin Attorney General of Indiana Marion County Public Defender Agency Lauren A. Jacobsen Appellate Division Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Durrand Anthony Jones, November 15, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1362 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. William J. Nelson, Judge Trial Court Cause No. 49G18-1805-F6-14428
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019 Page 1 of 6 [1] Durrand Anthony Jones (“Jones”) was convicted of resisting law enforcement
by flight,1 a Class A misdemeanor, and public intoxication, 2 a Class B
misdemeanor. On appeal, he contends that the evidence was insufficient for his
public intoxication conviction because there was no evidence he was
intoxicated from a controlled substance or alcohol.3
[2] We reverse and remand.
Facts and Procedural History [3] On May 1, 2018, an unidentified person called dispatch for the Indianapolis
Metropolitan Police Department (“IMPD”) and requested a welfare check on a
man who was “staggering in and out of traffic falling down” near the
intersection of Fairfield Avenue and College Avenue in Indianapolis. Tr. Vol. II
at 9. A search was commenced by three IMPD officers who were on duty at
the time: Officer Jeremiah Heckel (“Officer Heckel”); Officer Robert Cosler
(“Officer Cosler”); and Officer Richard Faulkner (“Officer Faulkner”). Id. at 5,
9, 15. Officer Heckel spotted Jones and observed him stumble over a curb, trip
into the street, and barely avoid being struck by a passing vehicle. Id. at 13.
[4] Based on this stumble, and because from a distance Jones’s eyes appeared to be
“wide open and glossy,” Officer Heckel approached Jones. Id. at 10. Jones,
1 See Ind. Code § 35-44.1-3-1(a)(3). 2 See Ind. Code § 7.1-5-1-3(a). 3 Jones does not challenge his conviction for resisting law enforcement by flight.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019 Page 2 of 6 meanwhile, was feeling the effects of recently smoking “K.” Id. at 20-21.
Officer Heckel asked whether he could talk with Jones. Id. Jones declined
Officer Heckel’s request and continued walking. Id. at 10. Officer Heckel
continued to ask if he could talk with Jones, and Jones continued to deny this
request. Id. When Jones had crossed the street, Officer Heckel caught up to
Jones and grabbed his wrist to detain Jones. Id. Jones fought back by “forcibly
jerk[ing] his arm away” and beginning to run. Id.
[5] Meanwhile, Officer Cosler had approached Jones and Officer Heckel when
they had begun to struggle. Id. at 15. Once Jones started running, Officer
Cosler tackled him, and Jones and Officer Cosler began fighting. Id. at 15-16.
During this fight, Officer Faulkner arrived. Id. at 16. He sprayed Jones with
pepper spray, “delivered three knee strikes” to the left side of Jones’s body, and
then all three officers subdued Jones. Id.
[6] On May 3, 2018, the State charged Jones with Count I, Level 6 felony resisting
law enforcement; Count II, Class A misdemeanor resisting law enforcement by
flight; and Count III, Class B misdemeanor public intoxication. Appellant’s App.
Vol. II at 15. On May 15, 2019, the trial court held a bench trial after which
Jones was found guilty of Class A misdemeanor resisting law enforcement by
flight and Class B misdemeanor public intoxication. Id. at 11. The trial court
imposed concurrent sentences of one year for Jones’s resisting law enforcement
conviction and 180 days for his public intoxication conviction, with all time
suspended except for time Jones had already served. Id. Jones now appeals.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019 Page 3 of 6 Discussion and Decision [7] Jones claims there was insufficient evidence to support his public intoxication
conviction because there was no evidence he was intoxicated from alcohol or a
controlled substance. When we review the sufficiency of the evidence, we do
not reweigh the evidence or judge the credibility of the witnesses. McHenry v.
State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, we will affirm a conviction if
we find that any reasonable factfinder could find a defendant guilty beyond a
reasonable doubt when considering all the facts and inferences that favor the
conviction. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). The evidence
need not exclude every reasonable hypothesis of innocence, but it must support
a reasonable inference of guilt to support the verdict. Drane v. State, 867 N.E.2d
144, 147 (Ind. 2007).
[8] To obtain a conviction for Class B misdemeanor public intoxication, the State
was required to show, inter alia, that Jones was in a public place in a state of
intoxication caused by Jones’s “use of alcohol or a controlled substance . . . .”
Ind. Code § 7.1-5-1-3(a). A controlled substance is “a drug, substance, or
immediate precursor in schedule I, II, III, IV, or V under: (1) IC 35-48-2-4, IC
35-48-2-6, IC 35-48-2-8, IC 35-48-2-10, or IC 35-48-2-12, if IC 35-48-2-14 does
not apply . . . .” Ind. Code § 35-48-1-9.
[9] Jones claims there was no evidence that he was in a state of intoxication caused
by a controlled substance. He correctly observes that, at most, the evidence
shows that he was high on “K” during his encounter with the three officers. Tr.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019 Page 4 of 6 Vol. II at 19-22. However, neither the testimony of Jones nor that of the officers
identified what “K” was, and no one testified that “K” was a controlled
substance. Moreover, “K” is not identified as a “controlled substance” under
the statutes that define that term. See I.C. § 35-48-1-9; I.C. § 35-48-2-4; I.C. §
35-48-2-6; I.C. § 35-48-2-8; I.C. § 35-48-2-10; I.C. § 35-48-2-12; and I.C. § 35-48-
2-14. Notably, the State does not argue that “K” is a controlled substance, and
even concedes that when Jones admitted to being high on “K,” Jones was likely
referring to a different, unrelated case.
[10] The State goes even further by conceding the evidence was insufficient to show
that Jones was intoxicated by any substance, whether a controlled substance or
alcohol. More specifically, the State admits: 1) the only evidence of
intoxication came from Officer Faulkner’s testimony about the call from IMPD
dispatch that a man was staggering into traffic and from Officer Heckel’s
testimony that he approached Jones because his eyes, from a distance, looked
glossy and because he saw Jones stumble once into the street; and 2) even
though all three officers closely encountered Jones during their fight with him,
none testified that they saw any signs of intoxication or smelled any odors
indicating intoxication. Tr. Vol. II at 4-18. The State concludes, “Jones’s one
stumble is not sufficient to prove Jones was intoxicated.” Appellee’s Br. at 8.
[11] Thus, the State failed to present sufficient evidence that Jones was in a public
place in a state of intoxication caused by either a controlled substance or
alcohol, so we reverse Jones’s conviction for public intoxication and remand to
the trial court to vacate Jones’s conviction. See I.C. § 35-48-1-9. Because we
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019 Page 5 of 6 reverse Jones’s conviction for insufficient evidence, the State may not retry
Jones on this charge. “[T]he Double Jeopardy Clause bars retrial when the
defendant’s conviction is reversed due to insufficient evidence because such a
reversal is tantamount to an acquittal.” Dexter v. State, 959 N.E.2d 235, 240
(Ind. 2012) (citing Burks v. United States, 437 U.S. 1, 16-17 (1978)).
[12] Reversed and remanded.
Baker, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019 Page 6 of 6