                                                                     Feb 29 2016, 8:48 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Megan Shipley                                              Gregory F. Zoeller
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana
                                                           Angela N. Sanchez
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Brice Hinton,                                              February 29, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A04-1508-CR-1167
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Shannon Logsdon,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           49G08-1504-CM-14803



May, Judge.




Court of Appeals of Indiana | Opinion 49A04-1508-CR-1167 | February 29, 2016                Page 1 of 7
[1]   Brice Hinton appeals his conviction of Class B misdemeanor public intoxication

      that endangers a person. 1 We affirm.


                                      Facts and Procedural History
[2]   Around 7:30 a.m. on April 29, 2015, police were called to a wooded trail

      between Speedway Elementary School and Speedway Middle School because

      multiple people observed Hinton in the woods next to the trail with a bow and

      arrow. Speedway Police Officer Jeremy Howery arrived on the scene and saw

      Hinton with a bow and arrow by his side. Officer Howery noticed Hinton was

      intoxicated and ask Hinton what he was doing. Hinton told Officer Howery he

      was “target shooting.” (Tr. at 10.) Hinton and Officer Howery discussed the

      danger of such an activity in an area with children nearby, and Hinton agreed it

      was a bad time to engage in target shooting. 2


[3]   The State charged Hinton with Class B misdemeanor public intoxication that

      endangers a person. During his bench trial, Hinton did not deny he was

      intoxicated in public at the time of the incident, but he argued he did not

      endanger a person. The trial court found Hinton guilty as charged.




      1
          Ind. Code § 7.1-5-1-3(a)(2) (2012).
      2
          There was no evidence admitted to prove Hinton actually shot the bow and arrow.


      Court of Appeals of Indiana | Opinion 49A04-1508-CR-1167 | February 29, 2016          Page 2 of 7
                                       Discussion and Decision
[4]   When reviewing the sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the

      fact-finder’s role, and not ours, to assess witness credibility and weigh the

      evidence to determine whether it is sufficient to support a conviction. Id. To

      preserve this structure, when we are confronted with conflicting evidence, we

      consider it most favorably to the trial court’s ruling. Id. We affirm a conviction

      unless no reasonable fact-finder could find the elements of the crime proven

      beyond a reasonable doubt. Id. It is therefore not necessary that the evidence

      overcome every reasonable hypothesis of innocence; rather, the evidence is

      sufficient if an inference reasonably may be drawn from it to support the fact-

      finder’s decision. Id. at 147.


[5]   To prove Hinton committed Class B misdemeanor public intoxication that

      endangers a person, the State had to present sufficient evidence he was “in a

      public place . . . in a state of intoxication caused by the person’s use of alcohol

      or a controlled substance . . . [and] endanger[ed] the life of another person[.]”

      Ind. Code § 7.1-5-1-3(a)(2). 3 Hinton argues the fact he was holding a bow and

      arrow at the time Officer Howery discovered him was not sufficient to prove he




      3
       The State also argues the evidence was sufficient under Ind. Code § 7-1.5-1-3(a)(1), which requires proof the
      defendant acted in a manner that “endangers the person’s life.” However, Hinton’s charging information
      specifically cites Ind. Code § 7-1.5-1-3(a)(2), which requires evidence he endangered the life of another
      person. Thus, we analyze the evidence only under the charged statute.

      Court of Appeals of Indiana | Opinion 49A04-1508-CR-1167 | February 29, 2016                       Page 3 of 7
      endangered another person because the bow was not drawn in a position where

      he was preparing to shoot an arrow.


[6]   In Davis v. State, 13 N.E.3d 500, 503 (Ind. Ct. App. 2014), we discussed the

      application of the endangerment element of the public intoxication statute:


              While the statute does not require that actual harm or injury
              occur, some action by the defendant constituting endangerment
              of the life of the defendant or another person must be shown.
              This is true even where an officer testifies that the defendant was
              a danger to himself or others. Were it otherwise, citizens could
              be convicted for possible, future conduct.


      (internal citation omitted). Davis was walking in a grassy area of an apartment

      complex toward the responding officer’s car. The officer arrested Davis and

      testified he “feared that if he allowed Davis to walk away, Davis would be

      struck by a car” because the “two-lane roads outside the apartment complex

      were busy even at that time of the morning, there were no sidewalks or

      shoulders abutting the roads, and the lighting on the roads [was] poor.” Id. at

      502. The trial court convicted Davis of Class B misdemeanor public

      intoxication endangering his life or the lives of others. We reversed Davis’

      conviction because the officer’s belief Davis would be injured had he been

      allowed to continue walking was “merely speculative” and the “State may not

      convict Davis for what would or could have happened.” Id. at 504.


[7]   Similarly, in Sesay v. State, 5 N.E.3d 478, 479 (Ind. Ct. App. 2014), trans. denied,

      we reversed Sesay’s conviction of Class B misdemeanor public intoxication

      while endangering his life or the lives of others because, while Sesay was
      Court of Appeals of Indiana | Opinion 49A04-1508-CR-1167 | February 29, 2016   Page 4 of 7
      intoxicated and in public, the officer’s belief Sesay could be hit by a passing car

      while Sesay was “standing peaceably” three to five feet off the roadway was

      speculative and thus insufficient evidence of endangerment. Id. at 486. Finally,

      in Stephens v. State, 992 N.E.2d 935, 937 (Ind. Ct. App. 2013), we reversed

      Stephens’ conviction of Class B misdemeanor public intoxication while

      endangering his life or the lives of others because Stephens’ act of walking,

      while intoxicated, to a nearby convenience store was insufficient to prove

      endangerment despite the fact he could have been involved in an altercation or

      accident at any point during that walk.


[8]   Hinton wants us to hold the risk he endangered someone was only speculation.

      The word “endanger” is not defined by the public intoxication statute.

      Generally, words not defined by statute are given their plain, ordinary, and

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

      The dictionary definition of “endanger” is “to bring into danger or peril” or “to

      create a dangerous situation.” http://www.merriam-

      webster.com/dictionary/endanger (last accessed February 9, 2016). In Davis,

      Sesay, and Stephens, the police intervened before the defendants were in a place

      where they could endanger someone or before the defendants were engaged in a

      behavior that could endanger someone. See Davis, 13 N.E.3d at 504 (although

      walking while intoxicated, he was in a grassy area and had not yet reached the

      busy street); and see Sesay, 5 N.E.3d at 486 (defendant was drunk near a street,

      but he was standing still three to five feet from road); and see Stephens, 992




      Court of Appeals of Indiana | Opinion 49A04-1508-CR-1167 | February 29, 2016   Page 5 of 7
       N.E.2d at 938 (defendant walked without incident to a nearby convenience

       store and did not display behavior to indicate he was a danger).


[9]    Here, in contrast, children “were within 10 feet of [Hinton’s] location,” (Tr. at

       8), and Hinton had the bow and arrow in a position that was an immediate

       precursor to shooting the weapon. Officer Howery testified:

               [Officer Howery]: [Hinton] had the -- the bow and arrow was in
               -- I don’t know the what the proper terminology -- was in the --
               the arrow was up in his hand and it was hooked to the thing, to
               the string that’s with the bow and arrow.


               [Counsel]:        Okay. So it was ready to be released?


               [Officer Howery]: He did not have it pulled back.


               [Counsel]: He didn’t have it -- okay. But he had the bow in the
               arrow? [sic]


               [Officer Howery]: Correct.


       (Id. at 8.) On cross-examination, Hinton acknowledged Officer Howery’s

       testimony Hinton “had the bow -- or the arrow []nocked in the bow[.]” (Id. at

       13.) Hinton indicated “nocked” was the terminology for when the arrow “was

       in the string [of the bow] basically.” (Id.)


[10]   While there is no allegation Hinton pointed the bow and arrow at anyone, the

       State is not required to prove “actual harm or injury occur[red]” to satisfy the

       element of endangerment. Davis, 13 N.E.3d at 503. We hold because Hinton

       Court of Appeals of Indiana | Opinion 49A04-1508-CR-1167 | February 29, 2016   Page 6 of 7
       was in close proximity to others and had the bow and arrow in a position from

       which he could immediately shoot the weapon, the State provided sufficient

       evidence he endangered other people while publicly intoxicated. See, e.g., Al-

       Saud v. State, 658 N.E.2d 907, 908 (Ind. 1995) (“the brandishing of a firearm in

       a congested area or during a dispute can create a variety of risks of bodily injury

       to others, regardless whether the weapon is loaded”). This is not to say mere

       possession of a bow and arrow would satisfy the endangerment element of the

       statute; instead, what is important is the state of the bow and the arrow at the

       time of police intervention. Hinton’s argument to the contrary is an invitation

       for us to reweigh the evidence and judge the credibility of witnesses, which we

       cannot do. See Drane, 867 N.E.2d at 146 (appellate court cannot reweigh

       evidence or judge the credibility of witnesses).


                                                  Conclusion
[11]   The State presented sufficient evidence Hinton committed Class B

       misdemeanor public intoxication that endangered another person.

       Accordingly, we affirm his conviction.


[12]   Affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1508-CR-1167 | February 29, 2016   Page 7 of 7
