      MEMORANDUM DECISION
                                                                      Jul 16 2015, 8:53 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited 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
      Suzy St. John                                             Gregory F. Zoeller
      Marion County Public Defender                             Attorney General of Indiana
      Indianapolis, Indiana
                                                                Jesse R. Drum
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Eric Williams,                                            July 16, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1410-CR-761
              v.                                                Appeal from the Marion Superior
                                                                Court
                                                                The Honorable Amy Jones, Judge
      State of Indiana,                                         Case No. 49G08-1407-CM-36720
      Appellee-Plaintiff,




      Robb, Judge.



                                 Case Summary and Issue
[1]   Following a bench trial, Eric Williams was convicted of public intoxication, a

      Class B misdemeanor, and sentenced to 178 days of probation. Williams


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      appeals his conviction, raising one issue for our review: whether the State

      provided sufficient evidence of endangerment to support his conviction.

      Concluding there was sufficient evidence that Williams was endangering his

      own life, we affirm.



                            Facts and Procedural History
[2]   Williams suffered a traumatic brain injury at some point he cannot recall due to

      the injury. The injury causes Williams to have slurred speech and an unsteady

      gait and limits movement in his right arm. Falling down is a “normal part of

      [his] life” following the injury. Transcript at 22.


[3]   In the afternoon of July 24, 2014, Indianapolis Metropolitan Police Department

      Officer Ernest Goss responded to a dispatch about a possibly intoxicated person

      urinating in the 2800 block of LaSalle Street. Officer Goss described that area

      of town as “a pretty high crime area . . . we’ve had lots of robberies and thefts of

      people . . . .” Transcript at 8. Officer Goss also described that portion of

      LaSalle Street as a frequently traveled road with sidewalks and stop signs.

      When Officer Goss arrived, he found Williams, with whom he was familiar,

      “stumbling in the middle of the street, very unbalanced . . . .” Id. “He was

      coming south on LaSalle Street in the middle of the street . . . he was just going

      straight down the street . . . .” Id. at 23. “He had urinated himself, he smelled

      of alcoholic beverage, his eyes were bloodshot.” Id. at 9. Officer Goss was

      concerned for Williams’s safety because “he couldn’t maintain his balance; he

      had fallen several times just in questioning. . . . The fact that he was in a very

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      rough neighborhood . . . lead [sic] me to the concerns of his well-being . . . .”

      Id. at 10. Officer Goss had Williams sit down for his own safety after he fell

      down during the investigation. Although Officer Goss was aware that Williams

      had suffered a traumatic brain injury, he was unaware of the physical

      manifestations of that injury; “on of all [sic] my other runnings in he’s actually

      had alcohol in his system. I have not had to arrest him before because I’ve had

      other members which to take him home however, once he has saturated his

      pants nobody wanted to take him home.” Id. at 13.


[4]   The State charged Williams with public intoxication, a Class B misdemeanor,

      for being in a state of intoxication in a public place and endangering his life or

      the life another person, or breaching the peace or being in imminent danger of

      breaching the peace. At the bench trial, Officer Goss testified to the events as

      described above. Williams testified in his own defense, asserting that the

      stumbling, falling, and slurred speech was because of his injury, denying

      alcohol use, and stating that he had been crossing LaSalle Street on his way

      home. Williams admitted he “maybe did” urinate on himself and was “not

      sure” whether there were cars on the road that barely avoided hitting him that

      day. Id. at 22-23. At the conclusion of the bench trial, the trial court found

      Williams guilty, stating:

              Understanding that many of the signs of intoxication are also
              symptoms of and signs of traumatic brain injury that Mr. Williams
              undoubtedly has however, when you couple those things with the odor
              of alcohol, the sign that he had soiled himself at some point in time
              while he was there with the officer, that he was walking – that the
              officer did observe him walking down the middle of the roadway. It is

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              a frequently traveled roadway, there were cars around that were
              driving on the road. That the officer actually did observe him fall
              during the course of the investigation and felt that it was appropriate to
              no longer allow him to stand for his own safety reasons. Um, that he
              did have him sit down while he conducted the remainder of this
              investigation. He also noticed that his eyes were bloodshot, as well.
              That those are things that are not necessary, um, those factors are not
              necessarily attributable to the traumatic brain injury. Understanding
              Mr. Williams gait issues, his lack of mobility, um, his slurred speech,
              um, that those are all things that are signs of a traumatic injury.
              However, when you couple those with the other observations, I do
              believe the State has proven beyond a reasonable doubt that he was
              intoxicated on that date. I find that the testimony is a little more
              reliable I think coming from the officer, as far as, where he was located
              in the street versus what Mr. Williams may or may not recall and how
              clearly he is able to recall it due to the level of intoxication on that
              particular day. That he wasn’t just simply crossing the street, that he
              was wandering the middle of the roadway, that is traveled and was
              being traveled by vehicles that day. And so, I’m going to find that the
              State has met their burden and find that you’re guilty of Public
              Intoxication as a Class B Misdemeanor.
      Id. at 26-27. Williams now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[5]   When we review the sufficiency of the evidence supporting a criminal

      conviction, we neither reweigh evidence nor judge the credibility of witnesses.

      Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). We only consider “the

      evidence supporting the judgment and any reasonable inferences that can be

      drawn from such evidence.” Id. (quoting Henley v. State, 881 N.E.2d 639, 652

      (Ind. 2008)). We will affirm a conviction if there is substantial evidence of


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      probative value supporting each element of the offense such that a reasonable

      trier of fact could have found the defendant guilty beyond a reasonable doubt.

      Id.


                                 II. Proof of Endangerment
[6]   A person commits public intoxication if he is in a public place in a state of

      intoxication and endangers his own life or the life of another person, breaches

      the peace or is in imminent danger of breaching the peace, or harasses, annoys,

      or alarms another person. Ind. Code § 7.1-5-1-3. Although Williams denied

      being intoxicated at his bench trial, he does not challenge the trial court’s

      finding of intoxication on appeal. Instead, he challenges only the trial court’s

      finding that the State proved he actually endangered himself by his conduct.


[7]   The public intoxication statute does not define “endangerment,” but in Davis v.

      State, 13 N.E.3d 500 (Ind. Ct. App. 2014), this court surveyed several cases

      decided under the amended public intoxication statute and concluded:

              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 endangerment of the life of the defendant or
              another person must be shown. . . . Were it otherwise, citizens could
              be convicted for possible, future conduct.
      Id. at 503. Stated differently, the defendant’s act must create an actual present

      danger, rather than some theoretical or hypothetical danger which may later

      manifest itself. Williams posits that the State did not prove that walking in the




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      street caused an actual danger and that his conviction is based upon

      speculation. We disagree.


[8]   In Sesay v. State, 5 N.E.3d 478, 485-86 (Ind. Ct. App. 2014), trans. denied, we

      held that the defendant’s conduct of standing near the edge of a road alongside

      a disabled vehicle did not prove endangerment despite the State’s assertions that

      he could have fallen into the road or been hit by a car. We noted that one of

      the reasons for amending the public intoxication statute to add the conduct

      elements was “to further the public policy of encouraging people to avoid

      driving while intoxicated and instead walk, take a cab or bus, or catch a ride

      home with a designated driver . . . .” Id. at 485. If the defendant was

      endangering his life by standing several feet off the road, “then every

      intoxicated person who chooses not to drive but instead to walk home along a

      sidewalk, stand near the road to hail a cab, or wait for public transportation at a

      bus stop is guilty of public intoxication . . . .” Id. We further noted that “it is

      the conduct of the intoxicated person that must cause the endangerment,” such

      that concern over, for instance, an erratic driver hitting the defendant as he

      stood a safe distance off the road was insufficient to prove endangerment. Id.


[9]   Williams, unlike the defendant in Sesay, was not conducting himself in an

      otherwise safe manner despite his intoxication. Officer Goss testified Williams

      was walking down the middle of a street, on a street that is frequently traveled,

      and on which he saw a few cars during his investigation. Crediting Officer

      Goss’s testimony, as the trial court did, Williams was not merely crossing from

      one side of the street to the other, but walking with the direction of traffic.

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       LaSalle Street has sidewalks, so walking in the street, even alongside the curb,

       was not necessary. It is not mere speculation that Williams could be in danger;

       it is evidence that he was in actual danger, even if nothing untoward had yet

       befallen him. Even if we disregard the evidence of his stumbling and falling as

       symptoms of his traumatic brain injury, it is not necessarily the manner in which

       he was walking but the place he was walking that proves endangerment.1



                                                 Conclusion
[10]   The State presented sufficient evidence from which the trial court could find

       Williams endangered himself to support Williams’s conviction of public

       intoxication. His conviction is therefore affirmed.


[11]   Affirmed.


       May, J., and Mathias, J., concur.




       1
         Thus, we need not address Williams’s contention that because of his injury, his balance issues were
       involuntary.

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