Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                          Oct 28 2014, 9:21 am
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

BARBARA J. SIMMONS                              GREGORY F. ZOELLER
Oldenburg, Indiana                              Attorney General of Indiana

                                                CHANDRA K. HEIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ANTONIO MANUEL,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A04-1402-CR-73
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Linda Brown, Judge
                           Cause No. 49F10-1307-CM-43792


                                     October 28, 2014

             MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Judge
                                Case Summary and Issue

      Antonio Manuel appeals his conviction of public intoxication as a Class B

misdemeanor. Manuel raises one issue for our review: whether sufficient evidence was

presented to prove beyond a reasonable doubt that Manuel was guilty of public

intoxication. Concluding that sufficient evidence was presented, we affirm.

                              Facts and Procedural History

      On July 4, 2013, Manuel and his wife, Sonja, were driving to a family barbeque.

Because Manuel was tired from working a fourteen hour shift, Sonja drove the vehicle.

While traveling, Manuel and Sonja began arguing because Manuel wished to go home

and sleep for a few hours rather than go directly from work to the barbeque. At one point

during this argument, Sonja stopped the vehicle in the middle of the road. Manuel took

the keys to the vehicle, exited the vehicle, and began walking down the road, thereby

leaving the vehicle in the middle of the road. Sonja then exited the vehicle and chased

after Manuel in an attempt to regain possession of the keys.

      Officers Robert Rider and Michael Darst of the Indianapolis Metropolitan Police

Department responded to a disturbance call. Upon approaching the area of the reported

disturbance, Officer Rider observed Manuel and Sonja standing in the middle of the street

arguing. In order to ascertain what was going on, Officer Rider exited his vehicle and

approached Manuel and Sonja.

      Initially, Officer Rider spoke with Manuel. Officer Rider observed that Manuel

exhibited unsteady balance, glassy and blood shot eyes, slurred speech, and an odor of

alcohol. In an attempt to amicably resolve this dispute and separate Manuel and Sonja,

                                            2
Officer Rider offered Manuel five options: (1) having the car towed; (2) walking to a

nearby relative; (3) receiving a ride from Officer Rider; (4) going to jail; or (5) turn the

keys over to Sonja and walk wherever he wanted. Manuel demonstratively rejected

Officer Rider’s proposed options.

       In the meantime, Officer Darst located the vehicle Manuel and Sonja left in the

middle of the road. Arriving back at the vehicle, Officer Rider again pleaded with

Manuel to turn over the keys to Sonja; otherwise, the vehicle would need to be towed. At

that point, Manuel’s friend showed up offering Manuel a ride. Manuel declined that offer

and continued to argue with Sonja. After approximately ten to fifteen minutes, Officer

Rider arrested Manuel.

       The State charged Manuel with public intoxication as a Class B misdemeanor. A

bench trial was held, and the trial court concluded the State proved beyond a reasonable

doubt that Manuel was guilty of public intoxication. Manuel now appeals his conviction.

                                 Discussion and Decision

       Manuel argues that his conviction for public intoxication should be reversed

because there was insufficient evidence to support his conviction. We disagree.

                                    I. Standard of Review

       When reviewing a claim of insufficient evidence, this court does not “reweigh the

evidence or judge the credibility of witnesses.” Mathews v. State, 978 N.E.2d 438, 443

(Ind. Ct. App. 2012), trans. denied. “Rather, we look to the evidence and the reasonable

inferences therefrom that support the verdict.” Id. Accordingly, a conviction will be



                                             3
affirmed “if there exists evidence of probative value from which a reasonable trier of fact

could find the defendant guilty beyond a reasonable doubt.” Id.

                                            II. Public Intoxication

       Manuel was convicted of public intoxication as a Class B misdemeanor. Public

intoxication, in relevant part, is defined 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 . . . 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.

Ind. Code § 7.1-5-1-3(a).

       On appeal, Manuel argues there was insufficient evidence to prove he was

intoxicated and “endangered his life or the life of another person, breached the peace

and/or harassed, annoyed or alarmed another person.”1 Appellant’s Brief at 8.

                                                 A. Intoxication

       Manuel argues that the evidence is insufficient to establish the element of

intoxication. Pursuant to the Indiana Appellate Rules, a contention must be supported by

cogent reasoning and citation to legal authority and the Appendix or parts of the record.

Ind. Appellate Rule 46(A)(8)(a). Outside of asserting that “he does not concede that he

was intoxicated,” Appellant’s Br. at 8, Manuel articulates no cogent reasoning, legal

authority, or citations to the record in support of his contention. Therefore, any argument

       1
           Manuel concedes that he was in a public place. Appellant’s Br. at 7-8.


                                                          4
that there was insufficient evidence to prove beyond a reasonable doubt the element of

intoxication is waived. See Barrett v. State, 837 N.E.2d 1022, 1030 (Ind. Ct. App. 2005)

(noting that failure to set forth a cogent argument waives the issue on appeal), trans.

denied.

                               B. The Four Conduct Elements

       Manuel also argues there is insufficient evidence to establish that he endangered

his or another person’s life, breached or was in imminent danger of breaching the peace,

or harassed, annoyed, or alarmed another person. Notably, these conduct elements were

added to the public intoxication statute in 2012 so that it was no longer a crime to simply

be intoxicated in public. See Stephens v. State, 992 N.E.2d 935, 938 (Ind. Ct. App.

2013). While Manuel lumps all four conduct elements into a single assertion, it is

important to note that because the statute is written in the disjunctive “or,” each conduct

element is independent and, therefore, capable of supporting a conviction for public

intoxication. See Holbert v. State, 996 N.E.2d 396, 402 (Ind. Ct. App. 2013) (“[I]t is a

Class B misdemeanor to be in a public place . . . in a state of intoxication . . . if the person

is engaging in one of the four listed criteria.”) (quotation omitted), trans. denied.

Furthermore, the State charged Manuel with violating any or all of the conduct elements.

Appellant’s Appendix at 16. Accordingly, Manuel’s conviction for public intoxication

will be affirmed based on evidence of probative value regarding any one of the four

conduct elements.     Because we conclude there was sufficient evidence that Manuel

endangered the life of another, we need not address the other three conduct elements.



                                               5
       A conviction for public intoxication will be affirmed if there is sufficient evidence

of probative value showing that a defendant endangers the life of another person while

intoxicated in a public place. See Ind. Code § 7.1-5-1-3(a)(2). The public intoxication

statute does not define “endangerment,” but several cases have addressed the issue.

       In Williams v. State, the defendant and friends were leaving a downtown

Indianapolis bar when one of the friends’ mother was struck by a vehicle. 989 N.E.2d

366, 367 (Ind. Ct. App. 2013). A large group of people, including the defendant, began

congregating in the street near the accident. Shortly after, police arrived and attempted to

clear the street. The defendant refused to voluntarily remove himself from the street and,

subsequently, was physically removed from the street by police for his safety. Moreover,

the defendant was belligerent with police and jerked his arm away from one officer while

also shoving another officer’s hand away from himself. This court held there was

sufficient evidence that the defendant “endangered himself or other persons, breached the

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

       Additionally, in Thang v. State, “the undisputed evidence established the sudden

presence of the defendant and his vehicle at a gas station, his intoxication, his possession

of the car keys, and the absence of any other person, thus necessitating removal of the car

by towing.”     10 N.E.3d 1256, 1260 (Ind. 2014).       Our supreme court held “it is a

reasonable inference that the defendant had arrived at the gas station by driving his

automobile on the public streets while intoxicated, thereby endangering his or another

person’s life.” Id.



                                             6
       Conversely, in Sesay v. State, this court found insufficient evidence of actual

endangerment where the defendant was standing several feet off a road in an intoxicated

state. 5 N.E.3d 478, 485-86 (Ind. Ct. App. 2014), trans. denied. We reasoned that the

State failed to establish any conduct on the part of the defendant which made it likely that

the defendant was endangered. Id. at 485. Furthermore, no danger had yet manifested

itself as the defendant was merely standing on the side of a road. Id. at 486. We noted

that the defendant’s act must cause actual danger because “speculation regarding things

that could happen in the future is not sufficient” where the statute uses the present tense

“endangers.” Id. at 485-86 (emphasis in original).

       Likewise, in Davis v. State, this court also held that there was insufficient

evidence of endangerment where the defendant, while intoxicated, walked out onto a road

in an apartment complex to speak with police officers. 13 N.E.3d 500, 503-04 (Ind. Ct.

App. 2014). This court reasoned there was no past or present dangerous act by the

defendant when there was no evidence that the defendant went near the dangerous roads

outside the apartment complex, and any argument that the defendant would endanger his

life if he left would be speculative. Id. at 504.

       What can be gleaned from the aforementioned cases is that “endangerment,” under

the public intoxication statute, requires an affirmative act by the defendant that manifests

an actual danger, regardless of whether the actual danger causes actual harm or injury.

See Davis, 13 N.E.3d at 503 (“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

                                               7
endangerment of the life of the defendant or another person must be shown.”). Put

another way, the defendant’s act must create an actual present danger, as opposed to

some theoretical or hypothetical danger which may later manifest itself.

       The case at hand is analogous to Williams and Thang.             In those cases, the

defendants’ acts manifested an actual danger to themselves or others. In Williams, the

defendant refused to remove himself from a busy street, creating the danger that he would

be hit by a moving vehicle. 989 N.E.2d at 370-71. In Thang, based upon circumstantial

evidence, one could infer the defendant drove to a gas station in a state of intoxication,

thereby manifesting a danger to himself or another person. 10 N.E.3d at 1260. Here,

while traveling to a barbeque, Sonja stopped the vehicle in the middle of the road.

Manuel then took the vehicle’s keys, exited the vehicle, and began walking away from

the vehicle. As a result of Manuel’s act, the vehicle was left in the middle of the road,

leaving Sonja, or anybody else, with no ability to move the vehicle into an appropriately

safe parking spot. Leaving a vehicle in the middle of the road creates an actual danger to

all travelers in other vehicles. For the safety of all other persons traveling, drivers should

not needlessly create roadway hazards by stopping, parking, or leaving their vehicles in

the middle of a road. See N. Ind. Transit, Inc. v. Burk, 228 Ind. 162, 169, 89 N.E.2d 905,

908 (1950) (discussing how the purpose of a statute requiring vehicles to stop or park

parallel with and within twelve inches of the right-hand curb is for the safety of other

moving vehicles); Town of Remington v. Hesler, 111 Ind. App. 404, 409, 41 N.E.2d 657,

659 (1942) (statute requiring “vehicles be parked at the right-hand curb[] was designed to

protect travelers in other vehicles”). See also Ind. Code § 9-21-16-7(a) (current statute

                                              8
requiring vehicles to stop or park parallel with and within twelve inches of the right-hand

curb).

         Moreover, Sesay and Davis are distinguishable. In Sesay, the defendant, while

intoxicated, stood peacefully on the side of the road. 5 N.E.3d at 479. This court could

not conclude that standing on the side of the road was an act which manifested actual

danger. Id. at 485-86. In a similar vein, in Davis, this court held that the defendant’s act

of walking onto a road in an apartment complex did not manifest actual danger. 13

N.E.3d at 503-04. In contrast, Manuel’s act of taking the vehicle’s keys, thereby leaving

the vehicle in the middle of the road, manifested an actual danger to all other travelers.

         In sum, Manuel concedes he was in a public place and has waived any argument

that he was not intoxicated. Furthermore, with all that is considered, sufficient evidence

was offered to prove that Manuel’s conduct endangered another’s life. Consequently, the

State has presented substantial evidence of probative value to support the conclusion that

Manuel was guilty of public intoxication.

                                        Conclusion

         Sufficient evidence of probative value was presented to sustain Manuel’s

conviction for public intoxication. Therefore, we affirm Manuel’s conviction.

         Affirmed.

BAKER, J., and KIRSCH, J., concur.




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