                                                              Oct 31 2013, 5:32 am


FOR PUBLICATION

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

PATRICIA CARESS McMATH                          GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                KATHERINE MODESITT COOPER
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

TIN THANG,                                      )
                                                )
      Appellant-Defendant,                      )
                                                )
             vs.                                )      No. 49A04-1303-CR-110
                                                )
STATE OF INDIANA,                               )
                                                )
      Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                   The Honorable Marshelle Broadwell, Judge Pro Tempore
                            Cause No. 49F07-1212-CM-81589



                                    October 31, 2013

                             OPINION - FOR PUBLICATION

CRONE, Judge
                                      Case Summary

       Tin Thang was arrested at an Indianapolis gas station and charged with class B

misdemeanor public intoxication. The trial court subsequently convicted him as charged.

Thang now appeals, challenging the sufficiency of evidence to support his conviction.

Finding that the evidence is insufficient to establish that the intoxicated Thang alarmed

another person within the mean of the statute or endangered either his life or another person’s

life, we reverse.

                              Facts and Procedural History

       While patrolling southwest Indianapolis on December 2, 2012, Indianapolis

Metropolitan Police Officer Michael Agresta stopped at a gas station to use the restroom.

When he emerged from the men’s room moments later, he noticed a vehicle in the parking lot

that had not been there when he arrived. He also noticed that there was a customer inside the

station conversing with the cashier, but he could not hear what was said. The cashier

immediately notified Officer Agresta that the customer showed signs of being intoxicated.

The officer approached the customer, Thang, and noticed that he was unsteady, smelled of an

alcoholic beverage, and had bloodshot eyes. The officer asked for identification, which

Thang produced. He also ran a license plate check on the vehicle that had recently arrived

and found that it was registered to Thang. The keys to the vehicle were in Thang’s

possession. Officer Agresta arrested Thang and had his vehicle towed.




                                              2
       The State charged Thang with class B misdemeanor public intoxication, and he was

convicted as charged following a bench trial. He now appeals. Additional facts will be

provided as necessary.

                                 Discussion and Decision

       Thang challenges the sufficiency of evidence to support his conviction. When

reviewing insufficiency of evidence claims, we neither reweigh evidence nor judge witness

credibility. Mathews v. State, 978 N.E.2d 438, 443 (Ind. Ct. App. 2012), trans. denied

(2013). Instead, we examine the evidence and reasonable inferences most favorable to the

judgment. Id. If there is evidence of probative value from which a reasonable trier of fact

could find the defendant guilty beyond a reasonable doubt, we will affirm. Id. A conviction

may be sustained on circumstantial evidence alone. Green v. State, 587 N.E.2d 1314, 1315

(Ind. 1992). “Reversal is appropriate only where reasonable persons would not be able to

form inferences as to each material element of the offense.” Naas v. State, No. 49A04-1301-

CR-4, 2013 WL 4105231, at *1 (Ind. Ct. App. Aug. 14, 2013).

       Thang was convicted of class B misdemeanor public intoxication. In 2012, the

General Assembly amended the public intoxication statute, defining the offense in pertinent

part as follows:

       [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 or
       a controlled substance (as defined in IC 35-48-1-9), if the person:

       (1) endangers the person’s life;

       (2) endangers the life of another person;


                                              3
        (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).

        Thang concedes that he was intoxicated in a public place1 but challenges the

sufficiency of evidence to support a finding that he either endangered himself or others,

breached or was in imminent danger of breaching the peace, or harassed, annoyed, or

alarmed another person. In amending the statute to include this required finding, the General

Assembly expressed its clear intent that it is “no longer a crime simply to be intoxicated in

public.” Stephens v. State, 992 N.E.2d 935, 938 (Ind. Ct. App. 2013). “The addition of these

elements promotes public policy 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.” Id. As we noted in Stephens, the recent timing of the amendment

leaves us with little precedent concerning the new language. Id.

        In Williams v. State, another panel of this Court affirmed the defendant’s conviction

under the amended version of the statute, where police officers had to forcibly escort the

intoxicated defendant out of the street after he belligerently refused the officers’ orders to

move onto the sidewalk. 989 N.E.2d 366, 370-71 (Ind. Ct. App. 2013). The Williams court

found this evidence sufficient to establish that Williams “endangered himself or others,

breached the peace, or harassed, annoyed, or alarmed another person.” Id. at 371.


        1
            “‘Intoxicated’ means under the influence of … alcohol … so that there is an impaired condition of
thought and action and the loss of normal control of a person’s faculties.” Ind. Code § 9-13-2-86. A gas
station is a public place. Fought v. State, 898 N.E.2d 447, 450-51 (Ind. Ct. App. 2008).


                                                     4
       In Stephens, we found the evidence insufficient to support a public intoxication

conviction where the defendant was initially in a private place (home) where he had every

right to be intoxicated, and he had walked to a public place (convenience store) to extricate

himself from an unsafe situation at home and to call the police for help. Id. at 3. Although

he was admittedly intoxicated and in a public place, the evidence was insufficient to establish

that he endangered himself or others, that he harassed, annoyed, or alarmed others, or that he

breached or was in imminent danger of breaching the peace. Id. Instead, he avoided a

potential breach of the peace by alerting the police rather than returning home.

       In Naas, another panel of this Court found the evidence sufficient to sustain the

defendant’s public intoxication conviction where he exhibited signs and behaviors indicative

of intoxication but also was calm and compliant when placed in custody. 2013 WL 4105231,

at *2. The evidence most favorable to the conviction indicated that he had red, watery eyes,

slurred speech, unsteady balance, and smelled of alcohol and that a half-empty bottle of

whiskey was found in the vehicle next to where he stood. Id. With respect to the new

element of “alarm” or “breach of the peace,” the Naas court held that the evidence most

favorable to the conviction was sufficient to show “alarm” where the defendant yelled at two

people and they backed away from him. Id.




                                              5
        Thang first challenges the State’s assertion that the evidence is sufficient to establish

that he “alarmed” the cashier.2 Notably, the cashier did not testify at Thang’s bench trial, and

the only evidence admitted concerning the cashier was Officer Agresta’s testimony that the

cashier waited on Thang, discerned that he was intoxicated, and alerted the officer as such.

Tr. at 6. There was no evidence that the cashier was alarmed or afraid. Rather, she simply

alerted the officer concerning Thang’s condition. This does not amount to “alarm” for

purposes of the statute.

        Thang also contends that the evidence is insufficient to support a finding that he

endangered himself or others by driving to the gas station while intoxicated.3 Officer Agresta

testified that he did not see Thang drive his vehicle to the gas station and that he did not

know how Thang got there. Id. at 9, 13. He was the only witness to testify at the trial. The

only person present at the scene who may have been in a position to see who drove the


        2
          With respect to the element of “alarm,” we acknowledge the very recent decision of Holbert v. State,
49A05-1302-CR-54, 2013 WL 5530681 (Ind. Ct. App. Oct. 8, 2013). There, a woman alerted police
concerning an unknown man who had twice crossed her yard, then entered her neighbor’s garage, and then
walked down a public street. Id., slip op. at 2. When police found the man walking down the street and
stopped him, he showed signs of intoxication. Id. at 3. The man, Holbert, was convicted of public
intoxication, and on appeal, another panel of this Court found the evidence insufficient to support his
conviction. Although the Holbert court addressed the “alarm” element contained in the revised statute, the
finding of insufficiency in that case turned on where the intoxicated person was when he engaged in the
behavior that alarmed another person, not on what constitutes alarm in the first place. See Id. at 9. (“The
behavior that alarmed [the woman] occurred while Holbert was on private property, not public property.”).
        3
           In examining the question of whether Thang endangered his or another person’s life, we reiterate
that we have little guidance concerning what constitutes endangerment under the newly revised public
intoxication statute. We can gain some insight from cases involving charges of class A misdemeanor operating
while intoxicated (“OWI”), which also requires a showing of endangerment. See Ind. Code § 9-30-5-2(b) (“An
offense [of operating a vehicle while intoxicated] is a Class A misdemeanor if the person operates a vehicle in
a manner that endangers a person.”). In these OWI cases, “endangerment can be established by evidence
showing that the defendant’s condition or operating manner could have endangered any person, including the
public, the police, or the defendant.” Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct. App. 2009), adopted by
929 N.E.2d 198 (Ind. 2010).

                                                      6
vehicle to the station was the cashier, and she was not called to testify at trial. Because

Officer Agresta arrested Thang at the gas station and had his vehicle towed, he likewise had

no evidence that Thang would endanger people by driving away, i.e., the officer did not see

Thang drive the vehicle to the station, nor did he see him attempt to re-enter the vehicle or

attempt to drive away. Instead, the officer testified that he ran a license plate check and

determined that Chang was the registered owner of the vehicle that had arrived at the gas

station while the officer was inside the restroom. Tr. at 8. He further testified that Thang

had the keys to the vehicle in his possession. Id. at 9. Simply put, this evidence was

insufficient to establish that the inebriated Thang drove his vehicle. As such, he cannot be

said to have endangered himself or others.

       Based on the foregoing, we conclude that the evidence is insufficient to support

Thang’s conviction for public intoxication. Accordingly, we reverse.

       Reversed.

BARNES, J., and PYLE, J., concur.




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