ROBB, Judge.
Following a bench trial, David Sesay was found guilty of public intoxication, a Class B misdemeanor, and sentenced to a term of 180 days, with 178 days suspended to probation. Sesay appeals his conviction, raising a single issue for the court's review: whether the evidence of "endangerment" is sufficient to support his conviction for public intoxication. Concluding the State failed to prove Sesay engaged in any conduct beyond intoxication that endangered his life, we reverse.
On March 3, 2013, Indianapolis Metropolitan Police Department Officer Adam Jones was assigned to the late shift patrolling the southwest district of Indianapolis. At approximately 3:00 a.m., he was dispatched to the intersection of Walton Street and Girls School Road to investigate a "no information accident." Transcript at 7. When he arrived, he found a vehicle with its "left side tires ... on the fog line down into" a four or five foot deep drainage ditch with water at the bottom. Id. at 8. Sesay was standing next to the car approximately three to five feet away from the roadway. Officer Jones did not see Sesay in the road at any point and there was no evidence he was ever in a position such that a car traveling lawfully on the road could hit him where he stood. Sesay was covered in mud, presumably having gotten out of the car on the passenger side, and it appeared to Officer Jones that Sesay had vomited on himself. Sesay had a strong odor of what Officer Jones believed to be alcohol on his breath and red or glassy bloodshot eyes. Sesay told Officer Jones that his girlfriend had been driving the car, but neither she nor anyone else was in the area. Officer Jones "felt very strongly that Mr. Sesay was highly intoxicated." Id. at 7-8. Officer Jones felt Sesay was a danger to himself because he "could barely standup without assistance," id. at 9-10, it was 3:00 a.m. so bars were closing, there was not a great deal of street lighting in the area, and Sesay was so close to the side of the road he could have been hit by a car. Officer Jones testified that he was alarmed for Sesay's safety if he were to leave him alone. Officer Jones arrested Sesay, moved him away from the vehicle, and sat him on a curb to wait for the jail wagon to arrive. Sesay's girlfriend arrived on the scene approximately twenty minutes after Officer Jones and prior to the arrival of the jail wagon.
The State charged Sesay with public intoxication, a Class B misdemeanor. Following a bench trial at which Officer Jones
Id. at 23. The court sentenced Sesay to 180 days with 178 days suspended to probation, and ordered him to have alcohol evaluation and treatment, attend Advocates Against Impaired Driving Destructive Decision Panel, refrain from alcohol use during probation, and complete forty hours of community service. Sesay now appeals his conviction.
Our standard of review for sufficiency claims is well-settled:
Houston v. State, 997 N.E.2d 407, 409 (Ind.Ct.App.2013) (citations omitted). "Reversal is appropriate only when reasonable persons would not be able to form inferences as to each material element of the offense." Bond v. State, 925 N.E.2d 773, 781 (Ind.Ct.App.2010), trans. denied.
Sesay was charged with public intoxication pursuant to Indiana Code section 7.1-5-1-3(a), which states:
Sesay specifically challenges the trial court's finding that the evidence proved he endangered his own life.
The public intoxication statute has existed in its current iteration since July 1, 2012. Prior to that date, public intoxication required only proof that a person was intoxicated and was in a public place.
Shortly after the Moore decision, the legislature accepted the court's invitation and amended the statute to add the four conduct elements to the definition of public intoxication. It is clear from the timing of the amendment that the legislature did not intend simply being drunk in a public place to be a criminal offense but intended to require some additional conduct. See Holbert v. State, 996 N.E.2d 396, 402 (Ind.Ct.App.2013) ("[T]he plain language of the statute conditions the entirety of the phrase `to be in a public place... in a state of intoxication' on the occurrence of one of the four listed criteria."), trans. denied. The amendment reflects the policy we had long declared to be behind the statute: "to prevent people from becoming inebriated and then bothering and/or threatening the safety of other people in public places." Id. at 401 (citation omitted); see also State v. Sevier, 117 Ind. 338, 20 N.E. 245, 246-47 (1889) ("The purpose of the law is to protect the public from the annoyance and deleterious effects which may and do occur because of the presence of persons who are in an intoxicated condition."). It also furthers 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." Stephens v. State, 992 N.E.2d 935, 938 (Ind.Ct.App. 2013). Not surprisingly, relatively few cases have been decided under the amended language and our supreme court has yet to weigh in.
Williams v. State, 989 N.E.2d 366 (Ind. Ct.App.2013), is the only case from this court to specifically address the endangerment element.
989 N.E.2d at 370-71. We held this was sufficient evidence to prove that Williams was in a public place in an intoxicated state that endangered himself or other persons, breached the peace, or harassed, annoyed, or alarmed another. Id. at 371.
Also affirming a public intoxication conviction under the amended statute is Naas v. State, 993 N.E.2d 1151 (Ind.Ct.App. 2013), in which Naas was found guilty of public intoxication under the alarm and breach of peace prongs. Naas and the occupants of a vehicle with which he was involved in a traffic incident each drove to a gas station where an argument ensued between the parties. A police officer responding to the scene observed the argument, specifically observing Naas yelling and walking aggressively toward the other couple, who were backing away from him. Naas had red watery eyes, slurred speech, unsteady balance, and smelled of alcohol. The trial court found him guilty of public intoxication because he "breached the peace with his manner and behavior and that he did, I am going to infer, alarm[ ] the other people by the fact that they backed away." Id. at 1152. On appeal, Naas argued there was insufficient evidence that he breached the peace or that his behavior alarmed another person. We held the evidence was sufficient:
Id. at 1153.
We reversed a conviction for public intoxication based on the "breaches the peace or is imminent danger of breaching the peace" prong in Stephens, 992 N.E.2d 935.
992 N.E.2d at 938.
And in Morgan v. State, 4 N.E.3d 751 (Ind.Ct.App.2014), this court reversed a public intoxication conviction, holding the "annoys another" prong of the public intoxication statute was unconstitutionally vague. Morgan was charged with public intoxication after a police officer heard yelling coming from a nearby bus shelter and observed Morgan sleeping on the bus shelter bench while his brother, the only other occupant of the shelter, yelled at him to wake up. The officer roused Morgan and told him several times to vacate the shelter. When Morgan eventually stood up, he was unsteady on his feet and the officer detected the odor of alcohol emanating from him. He was also agitated and angry. "Believing Morgan to be intoxicated, `coupled with the fact that ... his behavior was annoying,'" the officer placed him under arrest. 4 N.E.3d at 754. Morgan appealed his conviction, arguing the public intoxication statute is unconstitutionally vague because there is no objective standard for evaluating what is "annoying" conduct which fails to give notice
Id. at 758.
"Endangerment" is likewise not defined by the statute, although Sesay makes no constitutional argument with respect to this prong. Given there is but one case specifically addressing this prong in reference to the public intoxication statute, we look also to cases involving Class A misdemeanor operating while intoxicated ("OWI"). Until 2001, there was a single Class A misdemeanor crime of OWI,
Ind.Code § 9-30-5-2 (2001). The two levels of OWI — one without and one with an endangerment requirement — are similar in relation to each other as the pre- and post-amendment definitions of public intoxication.
In the post-2001 OWI context, we have made it clear that the State is required to offer proof of endangerment that goes beyond mere intoxication in order to obtain a Class A misdemeanor conviction. Vanderlinden v. State, 918 N.E.2d 642, 645 (Ind. Ct.App.2009) ("To the extent that our decisions have suggested that a showing of intoxication without more is adequate to prove endangerment, the amended statutes supplant those holdings."), trans. denied; see also Outlaw v. State, 918 N.E.2d 379, 382 (Ind.Ct.App.2009) (reversing conviction for Class A misdemeanor OWI where defendant exhibited signs of intoxication once he was pulled over, but the traffic stop was based on a non-illuminated license plate rather than any erratic or unlawful driving), adopted by 929 N.E.2d 196, 196 (Ind.2010) (explicitly rejecting the State's argument that evidence of intoxication is sufficient to prove endangerment post-statutory amendment). If we applied to the OWI statute the State's argument herein that unsupported speculation about what might happen or what could have happened is enough to prove endangerment,
Here, too, something more than mere intoxication is now required to prove a person has committed the crime of public intoxication. The State conceded as much at oral argument, and argues that standing near the edge of the road was sufficient additional conduct to prove Sesay was endangering his life, noting that he could have fallen into the road or been hit by a car. For several reasons, we disagree with the State that Sesay standing alongside the road, which is what Officer Jones observed when he arrived at the scene, was endangering his life.
One of the reasons behind the amendment was to further the public policy of encouraging people to avoid driving while intoxicated and instead walk, take a cab or a bus, or catch a ride home with a designated driver without fear of being prosecuted anyway. See Stephens, 992 N.E.2d at 938; cf. Moore, 949 N.E.2d at 344. If Sesay was endangering his life simply by standing near the road in an intoxicated state, then every intoxicated person who chooses not to drive but instead to walk home along a sidewalk, stand near the road to hail a cab, or wait for public transportation at a bus stop is guilty of public intoxication and the legislature's addition of the "endangerment" element would be rendered superfluous.
Additionally, it is the conduct of the intoxicated person that must cause the endangerment. One of the State's justifications for the conviction here is that Sesay could have been hit by a car as he stood several feet from the side of the road. But even a sober person standing alongside the road could be hit by a passing car if the driver of that car was driving erratically or failing to pay attention. When Officer Jones came upon Sesay, he was standing near the road alongside a stopped car. Officer Jones testified that Sesay had not and did not try to walk away from the scene but that he did not think Sesay would have been able to walk away because he could barely stand up without assistance. Nonetheless, Officer Jones did not see Sesay in the roadway, nor did he see him fall — or nearly fall, for that matter; he was just afraid that he might. There is nothing to indicate that Sesay's intoxication made it more likely that he would be hit by a car, and it is his conduct and not the conduct of a passing motorist that is the relevant consideration.
Finally, speculation regarding things that could happen in the future is not sufficient to prove the present crime of public intoxication.
Unlike the defendant in Williams who was in the street, ignored repeated requests to move out of the street for the safety of himself and others, and actively confronted officers with belligerent and physical behavior, 989 N.E.2d at 370-71, Sesay was standing peaceably several feet off the road beside a car that had been driven into a ditch. He told Officer Jones that his girlfriend had been driving the car, yet no one else was at or near the scene, so it is clear he had waited at the car for a not insignificant amount of time. No danger had yet manifested itself nor was it likely to once Officer Jones and then Sesay's girlfriend arrived on the scene. Under these circumstances, and with the policy and purpose of the amended public intoxication statute in mind, we hold that the State failed to prove Sesay was endangering his life and thus there is insufficient evidence to support his conviction for public intoxication.
To prove the offense of public intoxication, the State is required to show that a person is in a public place, in an intoxicated state, and — as relevant to this case — endangering his life. Although there is no question that Sesay was in a public place and that he was intoxicated, the State failed to prove that he engaged in any additional conduct that endangered his life. Sesay's conviction is, therefore, reversed.
Reversed.
RILEY, J., concurs.
BRADFORD, J., concurs in result with separate opinion.
BRADFORD, Judge, concurring in result.
I concur with the majority's conclusion that Sesay's conviction should be reversed. However, I write separately to clarify that while I believe that the evidence presented at trial was sufficient to show that Sesay was endangered at the time of his arrest, I believe that Indiana Code section 7.1-5-1-3 requires a showing that the endangerment resulted from an affirmative act by Sesay and, in the instant matter, the evidence presented below was insufficient to make such a showing.
On appeal, Sesay contends that evidence is insufficient to sustain his conviction for Class B misdemeanor public intoxication because the State failed to establish that he endangered his life or the life of another. Indiana Code section 7.1-5-1-3 provides that "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 beaching the peace; or (4) harasses, annoys, or alarms another person." The general assembly has not defined "endanger" with
In the instant matter, the parties acknowledge that Sesay was involved in a traffic accident when the vehicle in which he was a passenger went off the road and down into a four or five foot deep ditch. All agree, the driver of the vehicle, who was not Sesay, initially left the scene but returned some time later. Officer Jones testified that when he first encountered Sesay, he was standing approximately three to five feet off of a dark busy city street at approximately 3:00 a.m. Sesay appeared to be very intoxicated, had what looked to be vomit on his shirt, and could barely stand without assistance. The vehicle, next to which Sesay was standing, had gone off the street and into a four to five foot ditch. Officer Jones observed that there was water in the bottom of the ditch. Because I read the definition of endangerment to require only that the individual bring himself or another into danger or peril of probable harm or loss, as opposed to actual harm or loss, I would conclude that the above-stated evidence was sufficient to sustain a determination that Sesay was endangered at the time of his arrest.
However, even though I would conclude that Sesay was endangered at the time of his arrest, I believe that the clear language of Indiana Code section 7.1-5-1-3 requires a showing that the endangerment was caused by some act of the individual who is alleged to have committed public intoxication. Again, Indiana Code section 7.1-5-1-3 provides, in relevant part, that "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 ... endangers the person's life." (Emphasis added). I believe that the phrase "if the person," which precedes the phrase "endangers the person's life," indicates that the endangerment must be caused by some act of the individual.
In the instant matter, the record is devoid of any evidence pointing to any act committed by Sesay that could be said to have endangered Sesay.
In addition, the record states that Sesay was standing three to five feet from the roadway when Officer Jones first encountered Sesay. There were no sidewalks along the roadway where Sesay could safely stand while awaiting help, and Officer Jones testified that he did not, at any point, see Sesay enter the street. While I believe that standing along the side of the roadway in his intoxicated state was sufficient to place Sesay in a position of danger of probable harm, the record does not provide any other reasonable alternative for Sesay's actions.
