Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any           Jun 04 2014, 9:47 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                   GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

ANDREW BEAN                                     CHANDRA K. HEIN
Certified Legal Intern                          Deputy Attorney General
Indianapolis, Indiana                           Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

AUBREY THOMPSON,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
               vs.                              )        No. 49A02-1307-CR-606
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Rebekah Pierson-Treacy, Judge
                       The Honorable Shatrese Flowers, Commissioner
                             Cause No. 49F19-1211-CM-78764


                                       June 4, 2014

                MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                                 STATEMENT OF THE CASE

          Appellant-Defendant, Aubrey Thompson (Thompson), appeals her conviction of

public intoxication, a Class B misdemeanor, Ind. Code § 7.1-5-1-3.1

          We reverse.

                                              ISSUE

          Thompson raises one issue on appeal, which we restate as: Whether there is

sufficient evidence beyond a reasonable doubt to sustain Thompson’s conviction of public

intoxication.

                          FACTS AND PROCEDURAL HISTORY

          Shortly before 3:00 a.m. on November 18, 2012, Indianapolis Metropolitan Police

Department (IMPD) Officer Michael Reiger (Officer Reiger) was dispatched to an

apartment complex on the City’s north side in response to a domestic disturbance report.

Upon arrival, Officer Reiger observed as Denise Robinson (Robinson), who was standing

in front of her apartment building, engaged in a verbal and physical altercation with her

boyfriend, Brian Jenkins (Jenkins). Officer James Gillespie (Officer Gillespie) arrived on

the scene, and as the officers attempted to assess the situation, Robinson refused to cease

her screaming or cooperate with the investigation. After Robinson failed to heed the

officers’ warnings to stop making unreasonable noise, Officer Gillespie placed her under

arrest.



1
  An oral argument was conducted on March 25, 2014, at Terre Haute South High School in Terre Haute,
Indiana. We thank the attorneys for their excellent advocacy and the High School for its hospitality.

                                                  2
       Robinson’s friend, Thompson, was present at the scene and had witnessed the entire

episode. Upon realizing that Robinson was being arrested and that the officers were

permitting Jenkins to stay in Robinson’s apartment, Thompson “became agitated” and

approached the officers to communicate her distaste with their decisions. (Transcript p.

10). Thompson attempted to provide Officer Gillespie and Officer Reiger with a copy of

Robinson’s lease to establish that Jenkins had no right to be in the apartment, but Officer

Gillespie instructed Thompson to go inside the apartment because she was disrupting the

investigation. Although Thompson initially complied, she returned to the parking lot a

short time later. Several more times, the officers ordered Thompson to stay inside the

apartment only for her to reappear and interrupt them. Eventually Officer Gillespie advised

Thompson “that if she did not stop disrupting the investigation [the officers] would have

her be a subject of an investigation.” (Tr. pp. 19-20).

       Following her final warning, Thompson went inside the apartment but emerged

minutes later, carrying her purse, and informed the officers “that she was going to leave

the property.” (Tr. p. 11). Thompson stated that Jenkins “is a scary person” and she could

not stay at the apartment because she “was [in] fear for [her] life.” (Tr. pp. 45, 47).

Detecting an “odor of alcoholic beverage coming from her person, [along with] slurred

speech[] and bloodshot, glassy eyes[,]” the officers detained Thompson out of concern that

she would be “putting herself in danger as well as others on the road.” (Appellant’s App.

p. 14; Tr. p. 12). Thompson submitted to a portable breathalyzer test, which yielded a

blood alcohol concentration (BAC) of 0.03. At this point, Officer Gillespie placed

Thompson under arrest.

                                             3
       Later that day, the State filed an Information, charging Thompson with one Count

of public intoxication, a Class B misdemeanor, I.C. § 7.1-5-1-3. On June 27, 2013, the

trial court conducted a bench trial. At the close of the evidence, the trial court entered a

verdict of guilty and sentenced Thompson to a term of 180 days, with two days executed

and 178 days suspended, and ordered her to complete forty hours of community service.

       Thompson now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

                                     I. Standard of Review

       In a sufficiency of the evidence case, the standard of review is well established. We

neither reweigh the evidence nor judge the credibility of witnesses. Holbert v. State, 996

N.E.2d 396, 400 (Ind. Ct. App. 2013), trans. denied. We consider only the evidence most

favorable to the trial court’s judgment, along with any reasonable inferences that may be

drawn therefrom. Id. As long as there is substantial evidence of probative value from

which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt,

we will affirm the conviction. Id.

                             II. Public Intoxication Elements

       Thompson claims that there is insufficient evidence to support her conviction of

public intoxication. In 2012, the General Assembly amended the public intoxication statute

(P.I. Statute) by appending four new elements to the existing statutory criteria that an

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

App. 2013). The P.I. Statute provides that



                                              4
       it 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 . . . 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). In the Information, the State cited all four criteria as bases for

Thompson’s public intoxication charge. However, during the trial, the State clarified:

       At no point has the State alleged that [Thompson] annoyed the police or
       harassed the police or even alarmed the police . . . conducting the
       investigation. The issue came because [Thompson] in her intoxicated state
       when she decided she was going to leave and grabbed her purse and tried to
       leave . . . . At that point the officers did what any officer would do. They
       became concerned for the community. They b[ecame] concerned for the
       safety of the citizens of Marion County[] when someone with signs of
       intoxication . . . could possibly [be] sitting behind the wheel.

(Tr. pp. 64-65). As such, Thompson’s conviction pivots on whether she endangered either

her own life or the life of another person. I.C. § 7.1-5-1-3(a)(1)-(2).

       Thompson does not challenge the trial court’s finding that she was intoxicated or

that she was in a public place; rather, her sole contention on appeal is that there is no

evidence to support a finding that she endangered her own life or the life of anyone else.

Specifically, Thompson asserts that, by simply informing the police officers of her plan to

leave the scene, she did not manifest an intent to drive herself, and “the possibility of

driving” is insufficient to establish endangerment. (Appellant’s Br. p. 6). Additionally,

Thompson maintains that even if she did intend to drive, the possibility that she might drive

in an endangering manner “is too remote and speculative for a conviction.” (Appellant’s

Br. p. 9). On the other hand, the State contends that “[i]t was perfectly reasonable for the


                                              5
trier of fact to infer that Thompson had the ability to drive a vehicle in an intoxicated state

and endanger herself or others.” (State’s Br. p. 5).

                                  A. Actual Endangerment

       Thompson argues that there is no evidence of endangerment because she did not

actually drive her vehicle. We first note that the term “endangers” is not defined by the

P.I. Statute. In general, statutorily undefined words are assigned their plain, ordinary, and

usual meaning. Weideman v. State, 890 N.E.2d 28, 32 (Ind. Ct. App. 2008) (citing I.C. §

1-1-4-1(c)). Consulting the dictionary, we find that “endanger” is defined as “to cause

(someone or something) to be in a dangerous place or situation”; “to bring into danger or

peril”; or “to create a dangerous situation.” MERRIAM-WEBSTER, http://www.merriam-

webster.com/dictionary/endanger (last visited Apr. 1, 2014). The policy underlying the

newly-amended P.I. Statute acknowledges the potential risk of driving a vehicle while

intoxicated. See Stephens, 992 N.E.2d at 938 (noting the purpose of the amendment is to

“encourag[e] inebriated persons to avoid creating dangerous situations by walking,

catching a cab, or riding home with a designated driver rather than driving while

intoxicated”). Thus, the question we face is whether, as the State argues, it is sufficient for

the purposes of the P.I. Statute that Thompson “created the potential that she would drive

on the roadway in an intoxicated state and endanger herself or those on or near the

roadways.” (State’s Br. p. 6).

       Given the relative novelty of the amendment, the case law interpreting the P.I.

Statute in its current form is sparse. We did, however, recently address the proof required

to establish the endangerment elements. In Sesay v. State, No. 49A02-1305-CR-434, at *1

                                              6
(Ind. Ct. App. Mar. 24, 2014), police officers arrived on the scene of a car accident to find

Sesay standing next to his car, “approximately three to five feet away from the roadway.”

Sesay, who was not driving, was intoxicated, and the officers arrested him for public

intoxication because he “was so close to the side of the road he could have been hit by a

car.” Id. In reversing Sesay’s conviction, we found that “speculation regarding things that

could happen in the future is not sufficient to prove the present crime of public intoxication.

This is not an attempt crime where the person can take a substantial step toward committing

public intoxication by being intoxicated.” Id. at *6.

       In the present case, the evidence reveals that Thompson, while in public, exhibited

signs of intoxication and might have decided to drive somewhere. We could devise an

infinite number of hypotheticals in which any conduct could potentially endanger someone,

but to do so “would stretch the statute to an absurdity.” Id. We cannot base convictions

on abstract possibilities, and the fact that Thompson could have driven that night does not

demonstrate affirmative conduct causing endangerment.

       Conversely, in Williams v. State, 989 N.E.2d 366 (Ind. Ct. App. 2013), we upheld a

conviction for public intoxication based on endangerment. In Williams, the defendant

refused to comply with the police officers’ orders to stand on the sidewalk rather than in

the street. Id. at 367. We found that, by standing in the street, the inebriated defendant put

himself at risk of being struck by oncoming traffic. Id. at 370. In addition, police officers

were attempting to clear the street for emergency personnel so they could attend to a

woman who had been struck by a vehicle, but because the police officers had to remove

the belligerent defendant from the street in order to protect him and to ensure that the

                                              7
ambulance had access to the injured woman, the defendant also put the police officers at

risk of being hit by a vehicle. Id. at 367-68. Accordingly, endangerment does not

necessarily require that a person actually have been harmed. Instead, it requires actual

conduct by the defendant which places the defendant or another person in actual danger of

harm. The harm itself becomes more probable by virtue of the defendant’s conduct. See

Sesay, No. 49A02-1305-CR-434, at *8 (Bradford, J., concurring).

       Thompson contends that the language of the P.I. Statute evidences the legislative

intent that the endangerment must be actual and in the present. When “interpreting a

statute, we must consider not only what the statute says but what it does not say.” Holbert,

996 N.E.2d at 402. The P.I. Statute provides that a person commits public intoxication if

he “breaches the peace or is in imminent danger of breaching the peace.” I.C. § 7.1-5-1-

3(a)(3) (emphasis added). In contrast, the endangerment provisions do not include the

“imminent danger” description, nor any other modifying language such as “might

endanger.” I.C. § 7.1-5-1-3(a)(1)-(2); Sesay, No. 49A02-1305-CR-434, at *6. Thus, while

we do not disagree with the dissent that police should not necessarily have to wait for actual

danger to manifest itself before interceding when a person is publicly intoxicated, we do

believe they need to wait for the endangering conduct to manifest itself. Thompson

announced she was going to leave the scene; however, at the point at which she was

arrested, she could have as easily walked away as driven. Any harm remained remote and

speculative—a mere possibility as opposed to a reasonable probability.

                               B. Endangerment in the OWI Statute



                                              8
        Notwithstanding whether Thompson actually drove, the State asserts that

Thompson’s evident intent to drive herself is precisely the conduct the P.I. Statute

endeavors to prevent. We agree that the P.I. Statute affords protection to those intoxicated

individuals who elect to walk or rely on public transportation rather than risk creating a

dangerous situation by driving, but the Indiana General Assembly, through the operating

while intoxicated (OWI) statute, has already determined that evidence of a driver’s

intoxication is not conclusive of a finding that the driver endangered anyone.

        The OWI statute provides that it is a Class C misdemeanor for a person to operate a

vehicle while intoxicated. I.C. § 9-30-5-2(a); see Combs v. State, 895 N.E.2d 1252, 1258-

59 (Ind. Ct. App. 2008) (noting that, regardless of a defendant’s BAC, “the State may prove

intoxication ‘by a showing of impairment’”).                The charge is elevated to a Class A

misdemeanor if the intoxicated individual “operates a vehicle in a manner that endangers

a person.” I.C. § 9-30-5-2(b). As a result, if Thompson had actually driven her vehicle

that night, she may very well have been held criminally liable for a Class C misdemeanor

OWI. However, in order to upgrade the charge to a Class A misdemeanor OWI, there

would have to be “proof of endangerment that [exceeds] mere intoxication.” Outlaw v.

State, 918 N.E.2d 379, 382 (Ind. Ct. App. 2009), opinion adopted, 929 N.E.2d 196 (Ind.

2010).2




2
  We cannot agree with the dissent that evidence that a person drove while intoxicated goes beyond mere
intoxication and proves endangerment for the purposes of the P.I. Statute. Such a position is inconsistent
with our existing OWI law, as noted above. Regardless, there is no evidence here that Thompson drove
while intoxicated or, as characterized by the dissent, even “attempted to drive while intoxicated.”

                                                    9
       Likewise, in order to hold Thompson liable for public intoxication, there must be

proof that her conduct operated to endanger herself or another. As we have already stated,

Thompson did not engage in any affirmative conduct to place anyone in danger. Moreover,

because evidence of intoxication is not per se evidence of endangerment in the OWI

context, we find that, even if Thompson had elected to drive, she would have had to do

more than just shift her vehicle into gear for the State to establish endangerment under the

P.I. Statute. See id. (finding no evidence of endangerment where defendant, although

intoxicated, did not operate his vehicle in an unsafe, erratic, or unlawful manner).

Accordingly, we conclude that evidence of Thompson’s intoxication, combined with her

asserted intent to leave the premises, is insufficient to prove the crime of public intoxication

as a Class B misdemeanor.

                                       CONCLUSION

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

Thompson’s conviction of public intoxication because the State did not establish beyond a

reasonable doubt that Thompson endangered her own life or the life of another person

while intoxicated and in public.

       Reversed.

ROBB, J. concurs

BRADFORD, J. dissents with separate opinion




                                              10
                              IN THE
                    COURT OF APPEALS OF INDIANA


AUBREY THOMPSON,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )    No. 49A02-1307-CR-606
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


BRADFORD, Judge, dissenting.


       Because I believe the State presented sufficient evidence to support Thompson’s

public intoxication conviction, I respectfully dissent. Thompson characterizes the evidence

as establishing merely a “possibility” that she “might” drive while intoxicated. Appellant’s

App. p. 9. However, the record reveals that Thompson had driven earlier in the evening

and was sitting in her vehicle when the officers arrived at the scene. After engaging the

officers, an intoxicated Thompson retrieved her purse from Robinson’s apartment and, as

she was leaving, “advised [the officers] that she was going to be driving away.” Tr. p. 12.

This evidence establishes that Thompson attempted to drive while intoxicated, an

                                            11
affirmative act I find endangering under Indiana Code subsections 7.1-5-1-3(a)(1) and (2).

See generally Sesay v. State, 2014 WL 1177162 *7 (Ind. Ct. App. Mar. 24, 2014)

(Bradford, J. concurring in result).

       As I stated in Sesay, the plain and ordinary meaning of “endangerment”

contemplates exposure to “probable harm.” Id. (quoting WEBSTER’S THIRD NEW INT’L

DICTIONARY 748 (14th ed. 1961). Moreover, “the spirit of the public intoxication statute

is to prevent people from becoming inebriated and then bothering and/or threatening the

safety of other people in public places.” Holbert v. State, 996 N.E.2d 396, 401 (Ind. Ct.

App. 2013), trans. denied. The amended statute specifically “promotes public policy

encouraging inebriated persons to avoid creating dangerous situations [such as] driving

while intoxicated.” Stephens v. State, 992 N.E.2d 935, 938 (Ind. Ct. App. 2012), trans.

denied. Cf. Moore v. State, 949 N.E.2d 343 (Ind. 2011). Considering this legislative intent,

where an intoxicated person is attempting to drive, I do not believe the public intoxication

statute requires police to wait for her to be successful.

       Thompson relies on case law interpreting Indiana’s OWI statute for the proposition

that even driving while intoxicated is insufficient to prove endangerment under Indiana’s

public intoxication statute. This argument is misguided. The inquiry in the OWI context

is whether an intoxicated driver committed an endangering act. See Vanderlinden v. State,

918 N.E.2d 642, 646 (Ind. Ct. App. 2009) (finding excessive speed sufficient). In

Vanderlinden, we explained that the distinction in the two levels of OWI, one with an

endangerment requirement and the other without, precludes the argument that “driving a


                                              12
vehicle while intoxicated always endangers someone.” Id. at 645. Therefore, we held that

“the State is required to submit proof of ‘endangerment’ that goes beyond mere intoxication

to obtain a conviction for Class A misdemeanor OWI.” Id. at 645-46.

       In the public intoxication context, the inquiry is whether a publicly intoxicated

person committed an endangering act; operating a vehicle is not an element of the offense.

Thus, when applied to the distinction in the pre- and post-amendment public intoxication

statutes, the logic of Vanderlinden correspondingly precludes the argument that being

publicly intoxicated—as opposed to driving while intoxicated—always endangers

someone. Evidence that a person drove while intoxicated, therefore, “goes beyond mere

intoxication” and can be sufficient to prove endangerment under Indiana Code subsections

7.1-5-1-3(a)(1) and (2).

       For the foregoing reasons, I would affirm the judgment of the trial court.




                                            13
