MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                 Mar 17 2020, 9:56 am

court except for the purpose of establishing                                     CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Courtney L. Abshire
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Samuel Gebrehiwet,                                      March 17, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2045
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Matthew Kubacki,
Appellee-Plaintiff,                                     Judge Pro Tem
                                                        Trial Court Cause No.
                                                        49G08-1902-CM-5214



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2045 | March 17, 2020                     Page 1 of 12
                                Case Summary and Issue
[1]   Following a bench trial, Samuel Gebrehiwet was found guilty of battery

      resulting in bodily injury as a Class A misdemeanor and public intoxication, a

      Class B misdemeanor. He was sentenced to concurrent sentences of 365 days

      for the battery conviction, with 359 days suspended to probation; and sixty days

      for the public intoxication conviction, with fifty-four days suspended to

      probation. Gebrehiwet appeals, raising one issue for the court’s review which

      we restate as whether the trial court should have granted his Indiana Trial Rule

      41(B) motion for involuntary dismissal of the public intoxication charge.

      Concluding that the trial court did not err in denying Gebrehiwet’s motion, we

      affirm.



                            Facts and Procedural History
[2]   Paul Carroll worked as a barback and a bouncer at a drinking establishment

      (“Pub”) located in downtown Indianapolis. His duties included stocking the

      bar area and, when necessary, escorting troublesome, intoxicated, and unruly

      patrons from the Pub.


[3]   On February 9, 2019, at around 10:50 p.m., Paul was working in the back room

      of the Pub when he noticed Gebrehiwet bothering a dancing couple by dancing

      behind the woman. Whenever her partner moved her away from Gebrehiwet,

      Gebrehiwet would follow the woman and resume dancing behind her. Paul

      and his manager noticed that the woman’s partner was becoming frustrated,


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2045 | March 17, 2020   Page 2 of 12
      and the manager told Paul that “it’s time for [Gebrehiwet] to go.” Bench Trial

      & Sentencing, Volume II at 9. Paul noticed that Gebrehiwet seemed

      intoxicated. He approached Gebrehiwet and asked him to leave the Pub.

      Gebrehiwet was not happy about leaving the Pub, but he agreed to leave, did

      not argue with Paul, and showed no signs of aggression.


[4]   Paul escorted Gebrehiwet to a side door. Paul testified that the Pub uses this

      door to remove patrons because once the door closes, it automatically locks—

      preventing reentry. He also testified that bouncers are taught never to have

      their back to a patron, as a safety precaution. When Paul and Gebrehiwet

      reached the side door, Paul told Gebrehiwet to open the door. Gebrehiwet

      asked Paul to open the door, but Paul refused and told Gebrehiwet to open it.


[5]   Gebrehiwet opened the door as Paul stood behind him. Paul intended to close

      the door after Gebrehiwet; however, Gebrehiwet stopped in the doorway,

      pivoted, and tried to close the door on Paul while simultaneously throwing a

      beer bottle at him. Paul put his foot in the path of the door so Gebrehiwet

      could not close it. Paul ducked, but the bottle hit him in the temple causing

      him pain. Paul then pushed Gebrehiwet out of the doorway and onto the

      sidewalk. Paul testified that he pushed Gebrehiwet because “he was showing

      signs of aggression. He had already hit me. So, I didn’t know what else he was

      going to do. I was defending myself and I just got him out of the way.” Id. at

      12.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2045 | March 17, 2020   Page 3 of 12
[6]   A police officer who had been eating inside the Pub walked to the door and told

      Paul to leave Gebrehiwet alone. Paul then “walked to the other side of the

      building to calm down because [he] was a little bit upset.” Id. at 13.


[7]   The Indianapolis Metropolitan Police Department dispatched Officer Kari

      Pennington to a fight reported at the Pub. She was told the suspect was leaving

      the Pub. Officer Pennington, already close to the Pub, spotted the suspect

      (Gebrehiwet) as she received the dispatch. She watched Gebrehiwet walk from

      the Pub and across four lanes of traffic, heading towards the far sidewalk and

      staggering as he walked. She stopped him on the other side of a railroad trestle.


[8]   Officer Pennington had received training and was experienced in identifying

      intoxicated individuals. She determined that Gebrehiwet was intoxicated

      because she noticed that he swayed as he stood and staggered as he walked.

      She smelled the odor of alcohol on his breath and body, and she testified that he

      had a “hundred-yard stare”— as if he was “almost looking through [her].” Id.

      at 20-21.


[9]   On February 10, 2019, the State charged Gebrehiwet with battery resulting in

      bodily injury, a Class A misdemeanor. He also was initially charged with

      public intoxication, as a Class B misdemeanor, alleging that while he was in a

      state of intoxication, he had endangered a person’s life. On July 15, 2019, the

      State amended the public intoxication count to allege that while Gebrehiwet

      was in a state of intoxication, he harassed, annoyed, or alarmed the bouncer.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2045 | March 17, 2020   Page 4 of 12
[10]   On August 1, 2019, a bench trial was held. After the State presented its case,

       Gebrehiwet moved for involuntary dismissal of the public intoxication count,

       pursuant to Indiana Trial Rule 41(B). The trial court denied the motion,

       finding that the State had met its burden to prove the elements of both counts—

       Class A misdemeanor battery and Class B misdemeanor public intoxication.

       The court then found Gebrehiwet guilty as charged. Regarding finding

       Gebrehiwet guilty of both public intoxication and battery resulting in bodily

       injury, the trial court explained:


               As it pertains to count two, I do find from the testimony that the
               defendant was in a place – a public place or a place of public
               resort that being the [Pub]. That was through the testimony of
               [Paul]. I do find that he was intoxicated based upon the
               testimony from [Paul] all be it [sic] he doesn’t have formal
               certification. He was a bouncer and a [barback]. I previously
               when I was in college served as a bouncer and a [barback] and
               while I didn’t have formal training, I could tell when someone
               was drunk just based on looking at them. Also, from the
               testimony of Officer Pennington who . . . has gone through
               extensive training and believed the defendant was intoxicated
               based on the indicators that she saw. That occurred as a use of
               alcohol. As it pertains to whether or not he was harassing or
               annoying or alarming Paul Carroll – I do take into consideration
               counsel’s argument as to the duplicative use of the evidence to
               find him guilty in count one and attempting to use the same in
               count two as it pertains to him throwing the bottle and the
               argument that that bottle throwing was as to the harassing,
               annoying or alarming nature of Paul Carroll; however, based on
               [Paul]’s testimony alone – it went beyond just a little bit more to
               the throwing of the bottle just that this individual attempted to
               close the door. He was unaware if these things could go forward
               to the point where he had to push the defendant outside of the
               bar and stand over him to make sure that nothing went down.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2045 | March 17, 2020   Page 5 of 12
               While if the State proceeded only on the grounds of the bottle
               being thrown causing pain, I would find that counsel – your
               argument would have merit, but because of those other things all
               be it [sic] somewhat miniscule – I do believe that it does rise to
               the level of harassing, annoying or alarming Paul Carroll as he
               was unsure how this situation could escalate and where it could
               go from there. I do find as it pertains to this particular count and
               there’s no rope [sic] definition that is specific to Public
               Intoxication with harassing, annoying or alarming. . . . I do find
               the actions of the defendant to be that harassing, annoying or
               alarming and do find that there is separate evidence used to
               convict the defendant on count two separate from count one. I
               make that peculiarly [sic] for the record so if it does go to the
               Court of Appeals, they’re aware of how the [c]ourt came to that
               decision and based upon the actions that happened after the
               bottle was thrown including the door being slammed, the fact
               that his attitude and demeanor switched from being compliant to
               non-compliant and [Paul] testified that he felt compelled to stand
               over the defendant until law enforcement came because he was
               unsure if this was going to escalate or what was going to happen.
               So, I do find [the] State met their burden as it pertains to counts
               one and two and find Mr. Gebrehiwet . . . guilty of counts one
               and two.


       Id. at 29-31.


[11]   The trial court sentenced Gebrehiwet to 365 days, with 359 days suspended to

       probation for the battery conviction and sixty days, with fifty-four days

       suspended to probation for the public intoxication conviction – with the

       sentences to run concurrently. Gebrehiwet now appeals.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2045 | March 17, 2020   Page 6 of 12
                                 Discussion and Decision
                            Motion for Involuntary Dismissal
[12]   Gebrehiwet contends the State failed to present sufficient evidence to support

       his conviction of public intoxication, and therefore the trial court should have

       granted his Trial Rule 41(B) motion for involuntary dismissal of the public

       intoxication charge.


                                       A. Standard of Review
[13]   When reviewing the sufficiency of the evidence, we neither reweigh the

       evidence nor reexamine witness credibility. Bowman v. State, 51 N.E.3d 1174,

       1181 (Ind. 2016). We consider only the evidence and reasonable inferences

       supporting the judgment. Id. Reversal is appropriate only when a reasonable

       person would not be able to form inferences as to each material element of the

       offense. Naas v. State, 993 N.E.2d 1151, 1152 (Ind. Ct. App. 2013).


[14]   Trial Rule 41(B) states, in pertinent part:


               Involuntary dismissal: Effect thereof. After the plaintiff or party with
               the burden of proof upon an issue, in an action tried by the court
               without a jury, has completed the presentation of his evidence
               thereon, the opposing party, without waiving his right to offer
               evidence in the event the motion is not granted, may move for a
               dismissal on the ground that upon the weight of the evidence and
               the law there has been shown no right to relief. The court as trier
               of the facts may then determine them and render judgment
               against the plaintiff or may decline to render any judgment until
               the close of all the evidence. . . .


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2045 | March 17, 2020   Page 7 of 12
[15]   Our review of the trial court’s Trial Rule 41(B) decision is well-established:


                       The grant or denial of a motion to dismiss made
                       under Trial Rule 41(B) is reviewed under the clearly
                       erroneous standard. Taflinger Farm v. Uhl, 815
                       N.E.2d 1015, 1017 (Ind. Ct. App. 2004). In
                       reviewing a motion for involuntary dismissal, this
                       court will not reweigh the evidence or judge the
                       credibility of the witnesses. Id. We will reverse the
                       trial court only if the evidence is not conflicting and
                       points unerringly to a conclusion different from the
                       one reached by the lower court. Chemical Waste
                       Mgmt. of Ind., L.L.C. v. City of New Haven, 755
                       N.E.2d 624, 635 (Ind. Ct. App. 2001).


               Thornton–Tomasetti Eng’rs v. Indianapolis–Marion County Pub.
               Library, 851 N.E.2d 1269, 1277 (Ind. Ct. App. 2006). In a
               criminal action, “[t]he defendant’s [Trial Rule 41(B)] motion is
               essentially a test of the sufficiency of the State’s evidence.”
               Workman v. State, 716 N.E.2d 445, 448 (Ind. 1999). Notably, our
               review of the denial of the motion for involuntary dismissal is
               limited to the State’s evidence presented during its case-in-
               chief. See Harco, Inc. v. Plainfield Interstate Family Dining
               Assocs., 758 N.E.2d 931, 938 (Ind. Ct. App. 2001); see
               also Stephenson v. Frazier, 425 N.E.2d 73, 74 (Ind. 1981) (“‘Our
               review of the denial of the motion for involuntary dismissal . . . is
               limited to an examination of the evidence most favorable to [the
               State] which was presented prior to the filing of the motion.’”)
               (quoting F.D. Borkholder Co. v. Sandock, 274 Ind. 612, 413 N.E.2d
               567, 570 n.2 (1980)), superceded on other grounds, Ind. Trial
               Rule 41(B) (as amended Nov. 4, 1981).


       Williams v. State, 892 N.E.2d 666, 670-71 (Ind. Ct. App. 2008) (alterations in

       original), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2045 | March 17, 2020   Page 8 of 12
               B. Sufficiency of the Evidence – Public Intoxication
[16]   Gebrehiwet was convicted of public intoxication, a Class B misdemeanor,

       which, 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). Gebrehiwet was specifically charged under Indiana

       Code section 7.1-5-1-3(a)(4). Gebrehiwet does not argue that he was not

       intoxicated in a public place. Instead, he contends that the evidence was

       insufficient to prove beyond a reasonable doubt that he harassed, annoyed, or

       alarmed the bouncer. We disagree and find that the facts do demonstrate that

       Gebrehiwet was harassing, annoying, or alarming another person, per section

       (a)(4) of the public intoxication statute.


[17]   When Paul attempted to send Gebrehiwet out of the Pub’s side door,

       Gebrehiwet stopped in the doorway, pivoted, and tried to slam the door on

       Paul. At the same time, Gebrehiwet threw a beer bottle at Paul, hitting the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2045 | March 17, 2020   Page 9 of 12
       bouncer in the temple. Paul testified that Gebrehiwet began to show signs of

       aggression, and Paul felt compelled to push Gebrehiwet out of the doorway and

       onto the sidewalk. As Paul describes the situation, “[Gebrehiwet] was showing

       signs of aggression. He had already hit me. So, I didn’t know what else he was

       going to do. I was defending myself and I just got him out of the way.” Bench

       Trial, Vol. II at 12. A police officer who had been eating in the Pub intervened.

       Paul was so upset by the encounter with Gebrehiwet that he had to walk away

       from the situation and calm himself.


[18]   In finding Gebrehiwet guilty of both battery resulting in bodily injury and Class

       B misdemeanor public intoxication, the court emphasized:


               I do take into consideration counsel’s argument as to the
               duplicative use of the evidence to find him guilty in count one
               and attempting to use the same in count two as it pertains to him
               throwing the bottle and the argument that that bottle throwing
               was as to the harassing, annoying or alarming nature of Paul
               Carroll; however, based on [Paul]’s testimony alone – it went beyond
               just a little bit more to the throwing of the bottle just that this individual
               attempted to close the door. He was unaware if these things could go
               forward to the point where he had to push the defendant outside of the
               bar and stand over him to make sure that nothing went down. . . .
               [Paul] was unsure how this situation could escalate and where it
               could go from there. . . . [T]he fact that his attitude and demeanor
               switched from being compliant to non-compliant and [Paul] testified that
               he felt compelled to stand over the defendant until law enforcement came
               because he was unsure if this was going to escalate or what was going to
               happen[,] I do find [the] State met their burden as to counts one
               and two . . . .


       Id. at 29-31 (emphasis added).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2045 | March 17, 2020      Page 10 of 12
[19]   Gebrehiwet became aggressive, slammed a door, and alarmed Paul to such an

       extent that Paul felt compelled to push Gebrehiwet out of the doorway and

       onto the sidewalk because Paul “didn’t know what else [Gebrehiwet] was going

       to do.” Id. at 12. Paul was so upset by the encounter that he needed time to

       calm himself. Based on these facts, we cannot say that the evidence presented

       by the State is insufficient to allow a reasonable trier of fact to conclude that

       Gebrehiwet was in a public place in a state of intoxication and harassed,

       annoyed, or alarmed another person. Accordingly, we conclude that the

       evidence is sufficient to support Gebrehiwet’s conviction for Class B

       misdemeanor public intoxication; and, the trial court’s denial of Gebrehiwet’s

       Trial Rule 41(B) motion for involuntary dismissal of the public intoxication

       charge was not clearly erroneous, as the State’s evidence from its case-in-chief

       does not “point[ ] unerringly to a conclusion different from the one reached” by

       the trial court on Gebrehiwet’s motion. See Thornton–Tomasetti Eng’rs, 851

       N.E.2d at 1277.



                                              Conclusion
[20]   The trial court’s denial of Gebrehiwet’s Trial Rule 41(B) motion was not clearly

       erroneous. The State presented sufficient evidence to support Gebrehiwet’s

       conviction for Class B misdemeanor public intoxication beyond a reasonable

       doubt. Thus, the judgment of the trial court is affirmed.


[21]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2045 | March 17, 2020   Page 11 of 12
Bradford, C.J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2045 | March 17, 2020   Page 12 of 12
