FOR PUBLICATION
                                                       FILED
                                                    Mar 29 2012, 9:28 am


                                                           CLERK
                                                         of the supreme court,
                                                         court of appeals and
                                                                tax court




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:
ANN M. SUTTON                                GREGORY F. ZOELLER
Marion County Public Defender Agency         Attorney General of Indiana
Indianapolis, Indiana
                                             BRIAN REITZ
                                             Deputy Attorney General
                                             Indianapolis, Indiana



                            IN THE
                  COURT OF APPEALS OF INDIANA

MICHAEL WOODSON,                             )
                                             )
      Appellant-Defendant,                   )
                                             )
         vs.                                 )      No. 49A02-1106-CR-543
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )

                   APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable James B. Osborn, Judge
                      The Honorable Patrick Murphy, Commissioner
                           Cause No. 49F15-1102-CM-007863


                                   March 29, 2012
                             OPINION – FOR PUBLICATION

MATHIAS, Judge
          Michael Woodson (“Woodson”) was convicted in Marion Superior Court of Class

B misdemeanor public intoxication. Woodson appeals and argues: (1) that the trial court

erred in admitting evidence obtained as result of his encounter with the police, and (2)

that the State presented insufficient evidence to support his conviction.

          We affirm.

                                   Facts and Procedural History

          In the early morning hours of February 5, 2011, Indianapolis Metropolitan Police

Department Officer Christopher Chapman (“Officer Chapman”) was dispatched to

investigate a report of a man and a woman fighting in the street at the intersection of two

streets in Indianapolis.        When Officer Chapman arrived at the intersection, he was

flagged down by a pedestrian who directed him down the street. Officer Chapman drove

approximately one block down the street and saw a man, later identified as Woodson, and

a woman on the sidewalk. Officer Chapman exited his car and approached the couple.

Four other officers also arrived on the scene at approximately the same time.1 Although

Woodson and his companion were not fighting, Chapman did smell the odor of alcohol

on Woodson. The woman showed no sign of injuries and left after speaking to Officer

Chapman. Woodson, however, was “abrasive” and, in addition to smelling of alcohol,

his speech was slurred. Woodson admitted that he had consumed a pint of hard liquor

and a thirty-two ounce beer. Woodson also kept his hands in his pockets. Officer

Chapman asked Woodson to remove his hands from his pockets for reasons of officer

safety.     But despite being asked four times to remove his hands from his pockets,
1
    Only Officer Chapman testified at Woodson’s trial.

                                                    2
Woodson refused. At this point, Woodson was placed in handcuffs and arrested for

public intoxication.

       Later that day, the State charged Woodson with Class B misdemeanor public

intoxication. On March 30, 2011, Woodson filed a motion to suppress, arguing that there

was no reasonable suspicion to detain him and that all evidence resulting from his

interaction with the police should be suppressed. The motion to suppress was argued at

Woodson’s bench trial, which was held on April 21, 2011. The trial court denied the

motion to suppress and allowed the State to present the testimony of Officer Chapman.

Woodson testified on his own behalf and denied being drunk. He testified instead that he

had not been drinking that night and claimed that he was simply advising the woman he

was with that it was dangerous to be on the street. The trial court found Woodson guilty

as charged and sentenced him to a one-day suspended sentence. Woodson now appeals.

                               I. Admission of Evidence

       Woodson first challenges the trial court’s ruling on the admission of evidence. We

recently explained that:

       [o]ur standard of review of rulings on the admissibility of evidence is
       essentially the same whether the challenge is made by a pre-trial motion to
       suppress or by trial objection. We determine whether there is substantial
       evidence of probative value to support the trial court’s ruling. We do not
       reweigh evidence and construe conflicting evidence most favorably to the
       trial court’s ruling. We must also consider uncontested evidence favorable
       to the defendant. The trial court’s ultimate determination of the
       constitutionality of a search or seizure is, however, reviewed de novo.

Woodson v. State, 960 N.E.2d 224, 226 (Ind. Ct. App. 2012) (citations and internal

quotations omitted).


                                           3
       Woodson claims that the trial court should have suppressed any evidence obtained

from his encounter with the police because there was no reasonable suspicion justifying a

police stop. Both the Fourth Amendment of the United States Constitution and Article 1,

Section 11 of the Indiana Constitution afford individuals protection from unreasonable

searches and seizures. Woodson, 960 N.E.2d at 227. These protections extend to brief

investigatory stops of persons that fall short of traditional arrest. Armfield v. State, 918

N.E.2d 316, 319 (Ind. 2009); Terry v. Ohio, 392 U.S. 1, 9 (1968). “Under Terry, an

officer is permitted to stop and briefly detain a person for investigative purposes if the

officer has a reasonable suspicion supported by articulable facts that criminal activity

may be afoot, even if the officer lacks probable cause.” Armfield, 918 N.E.2d at 319

(internal quotations omitted).

       Reasonable suspicion requires that there be “some objective manifestation that the

person stopped is, or is about to be, engaged in criminal activity.” Woodson, 960 N.E.2d

at 227 (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). Although there is no

set of hard-and-fast rules to determine what constitutes reasonable suspicion, a mere

“hunch” is insufficient. Id. On appeal, we make reasonable-suspicion determinations by

looking at the totality of the circumstances of each case to see whether the detaining

officer has a particularized and objective basis for suspecting legal wrongdoing. Id.;

Armfield, 918 N.E.2d at 319.

       Here, Woodson claims that the police had no reasonable suspicion to initiate a

Terry stop to investigate him as he stood on the sidewalk. Woodson notes that the only

information that the police had at that time came from an unknown caller. And Woodson

                                             4
is correct that, as a general rule, “an anonymous tip alone is not likely to constitute the

reasonable suspicion necessary for a valid Terry stop.” Sellmer v. State, 842 N.E.2d 358,

361 (Ind. 2006) (citing Lampkins v. State, 682 N.E.2d 1268, 1271 (Ind. 1997); Alabama

v. White, 496 U.S. 325, 329-30 (1990)).

       However, not all encounters between citizens and the police constitute a seizure

requiring justification. As we explained in Powell v. State:

       There are three levels of police investigation, two of which implicate the
       Fourth Amendment and one of which does not. First, the Fourth
       Amendment requires that an arrest or detention that lasts for more than a
       short period of time must be justified by probable cause. Second, pursuant
       to Fourth Amendment jurisprudence, the police may, without a warrant or
       probable cause, briefly detain an individual for investigatory purposes if,
       based upon specific and articulable facts, the officer has a reasonable
       suspicion that criminal activity has or is about to occur. The third level of
       investigation occurs when a police officer makes a casual and brief inquiry
       of a citizen, which involves neither an arrest nor a stop. This is a
       consensual encounter in which the Fourth Amendment is not implicated.

912 N.E.2d 853, 859 (Ind. Ct. App. 2009) (citing State v. Calmes, 894 N.E.2d 199, 202

(Ind. Ct. App. 2008)).

       A person is “seized” only when, by means of physical force or a show of authority,

his or her freedom of movement is restrained. Id. What constitutes a restraint on liberty

prompting a person to conclude that he is not free to leave will vary depending upon the

particular police conduct at issue and the setting in which the conduct occurs. Id.

“‘Examples of circumstances that might indicate a seizure where the person did not

actually attempt to leave the scene would be the threatening presence of several officers,

the display of a weapon by an officer, some physical touching of the person of the citizen,

or the use of language or tone of voice indicating that compliance with the officer’s

                                            5
request might be compelled.’” Id. (citing United States v. Mendenhall, 446 U.S. 544, 553

(1980)).   Where such evidence is lacking, otherwise inoffensive contact between a

member of the public and the police does not amount to a seizure of that person. Id. The

test for existence of a “show of authority” is an objective one in that the question is not

whether the citizen perceived that he was being ordered to restrict his movement, but

whether the officer’s words and actions would have conveyed that to a reasonable person.

Id. (citing California v. Hodari D., 499 U.S. 621, 628 (1991)).

       We agree with the State that there was no requirement for reasonable suspicion for

the police to approach Woodson and his companion because, at least initially, the

encounter was simply “a casual and brief inquiry of a citizen, which involves neither an

arrest nor a stop.” See Powell, 912 N.E.2d at 859. The police had been dispatched to the

area on a report of a man and a woman fighting in the street. When the police arrived,

they were directed by a bystander to the area where Woodson and his female companion

were found. The police approached Woodson and his companion while the two were on

the sidewalk. We find nothing improper about this behavior on the part of the officers.

In fact, we think it would be absurd to suggest that the police could not approach

Woodson under these circumstances. Although there were several officers on the scene,

there is no indication that their presence was threatening. Indeed, Officer Chapman

testified that he and his fellow officers did not have their weapons drawn and that the

lights on their patrol cars were not activated. Nor is there any indication that Officer

Chapman, or any of the other officers, touched Woodson or instructed him to stop.

       Based on the totality of the circumstances, we conclude that Woodson’s encounter

                                             6
with the police did not rise to the level of a Terry stop for which reasonable suspicion is

required.   Instead, it was a consensual encounter that was not a seizure within the

meaning of the Fourth Amendment. See State v. Augustine, 851 N.E.2d 1022, 1025 (Ind.

Ct. App. 2006) (holding that defendant sitting in driver’s seat of his car in his driveway

with the engine running was not seized when the officer approached him to investigate

report of erratic driving because there were no other officers present, no evidence that the

officer displayed a weapon or touched the defendant, and no indication that the officer

used any language or spoke in a tone of voice mandating compliance); State v. Lefevers,

844 N.E.2d 508, 513 (Ind. Ct. App. 2006) (holding that defendant was not seized when

she parked her car near police officer’s car and officer, without activating his lights, got

out of his vehicle and began talking to the defendant), trans. denied; Overstreet v. State,

724 N.E.2d 661, 663 (Ind. Ct. App. 2000) (holding that defendant was not stopped or

seized where officer pulled his patrol car behind defendant’s car at fuel pump without

activating his lights, approached him, asked for identification, and questioned him about

suspicious activity), trans. denied; see also Michigan v. Chesternut, 486 U.S. 567, 574-75

(1988) (holding that defendant was not seized by police where the record did not reflect

that the police had activated a siren or flashers, commanded the defendant to halt, or

displayed any weapons and concluding that even though officer’s behavior of driving his

patrol car parallel to a running pedestrian “could be somewhat intimidating,” such “police

presence does not, standing alone, constitute a seizure.”).2


2
  Woodson argues that the police violated both the federal and Indiana constitutions. But he makes no
separate argument regarding Article 1, Section 11 of the Indiana Constitution. We therefore consider
                                                 7
        Woodson, however, claims that Officer Chapman testified that Woodson was “not

free to leave” when the officers first arrived. This is not entirely accurate. During cross-

examination of Officer Chapman, Woodson’s trial counsel asked the following leading

question: “So at that point, Mr. Woodson [was] not free to leave. Is that correct?” Tr. p.

68. Officer Chapman responded, “Um . . . I would say no. I mean – I’m just dispatched,

you know. . . .” Id. (ellipses in original). Officer Chapman’s response is, at best,

ambiguous. His response of “I would say no,” could mean, as Woodson takes it, that

Officer Chapman believed that Woodson was not free to leave. However, it could also be

a negative response to counsel’s actual question of “Is that correct?” That is, Officer

Chapman could have meant that Woodson’s counsel was not correct in saying that

Woodson was not free to leave. In light of this ambiguity, we cannot say that Officer

Chapman testified that Woodson was not free to leave. Moreover, Officer Chapman’s

subjective belief as to whether Woodson was free to go is not dispositive. The test for the

existence of a “show of authority” is an objective one based on upon what the officer’s

words and actions would convey to a reasonable person. Powell, 912 N.E.2d at 859.

        Once the officer smelled the odor of alcohol on the defendant and noticed that his

speech was impaired, however, the initially-consensual encounter evolved into a Terry

only his argument under the Fourth Amendment of the federal Constitution. See Abel v. State, 773
N.E.2d 276, 278 n.1 (Ind. 2002) (holding that state constitutional claim was waived where defendant
presented no independent analysis supporting a separate standard under the state constitution). And even
if we considered the conduct of the officers here under Article 1, Section 11 of the Indiana Constitution,
Woodson would not prevail. The propriety of a search and seizure under the Indiana Constitution “turns
on an evaluation of the reasonableness of the police conduct under the totality of the circumstances.”
Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). We find nothing about the conduct of the officers in
the present case to be unreasonable. Instead, it would be unreasonable for the officers, responding to a
call of a man and a woman fighting in the street, not to approach Woodson after going to the area of the
reported fight and finding Woodson and his female companion on a nearby sidewalk.

                                                    8
stop.   This is precisely what happened in Augustine, where an initially consensual

encounter became a Terry stop once the officer noticed that the defendant smelled of

alcohol, was unable to speak clearly, and admitted to drinking and driving. Augustine,

851 N.E.2d at 1025. We concluded that the Terry stop was justified by reasonable

suspicion based on the call from the concerned citizen and the observations made by the

officer, i.e. the defendant sitting in his car with the engine running, smelling of alcohol,

and having difficulty speaking. Id. at 1026.

        Similarly, here we conclude that, once Officer Chapman smelled the odor of

alcohol on Woodson and noticed that Woodson’s speech was slurred, he had a reasonable

suspicion based on articulable facts that Woodson was publicly intoxicated.            This

suspicion was confirmed when Woodson admitted to having consumed, by anyone’s

standards, a large quantity of alcohol—a pint of hard liquor and a thirty-two ounce beer.

This, combined with Woodson’s refusal to remove his hands from his pockets despite

repeated requests to do so justified the officers’ actions of placing Woodson in handcuffs

and charging him with public intoxication. Simply put, the trial court did not err in

admitting evidence obtained as a result of Woodson’s encounter with the police.

                             II. Sufficiency of the Evidence

        Woodson also claims that the State presented insufficient evidence to support his

conviction for public intoxication. Upon a challenge to the sufficiency of evidence to

support a conviction, we neither reweigh the evidence nor judge the credibility of the

witnesses; instead, we respect the exclusive province of the trier of fact to weigh any

conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We consider

                                               9
only the probative evidence and reasonable inferences supporting the verdict, and we will

affirm if the probative evidence and reasonable inferences drawn from the evidence could

have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable

doubt. Id.

       Pursuant to Indiana Code section 7.1-5-1-3 (2005), “[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[.]” Woodson does not deny that he was in a public

place; instead, he claims that the State did not prove that he was intoxicated. We disagree.

       Indiana Code section 9-13-2-86 (2004) defines “intoxicated” as “under the

influence of alcohol . . . so that there is an impaired condition of thought and action and

the loss of normal control of a person’s faculties.” See Fought v. State, 898 N.E.2d 447,

451 (Ind. Ct. App. 2008) (citing Indiana Code section 9-13-2-86 in discussion of

sufficiency of evidence supporting public intoxication conviction). The State need not

present separate proof of impairment of action, impairment of thought, and loss of control

of faculties to establish an individual’s intoxication. Curtis v. State, 937 N.E.2d 868, 873

(Ind. Ct. App. 2010). Rather, a person’s impairment is to be determined by considering

his capability as a whole, not component by component, such that impairment of any of

these three abilities equals impairment. Id. And such impairment can be established by

evidence of: (1) the consumption of significant amount of alcohol; (2) impaired attention

and reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on the breath; (5)

unsteady balance; (6) failure of field sobriety tests; and (7) slurred speech. Fought, 898

N.E.2d at 451.

                                            10
      Woodson complains that there was no evidence that he had any difficulty standing

or walking and that, without such, the evidence is insufficient to show that he was

impaired in action. This is little more than a request to reweigh the evidence, which we

will not do. The evidence favoring the conviction reveals that Officer Chapman could

smell the odor of alcohol on Woodson and that Woodson’s speech was slurred. Woodson

also had an “abrasive” attitude toward the police. More importantly, Woodson admitted

to drinking an entire pint of hard liquor and a thirty-two ounce beer. Thus, three of the

seven above-mentioned factors indicating intoxication were present. The trial court judge,

acting as the trier of fact, could readily conclude from this evidence that Woodson was

under the influence of alcohol such that there was an impaired condition of thought and

action and the loss of normal control of Woodson’s faculties.

      Furthermore, Officer Chapman testified that, based upon his training and

experience, it was his opinion that Woodson was “intoxicated.” Tr. p. 19. This itself is

sufficient to support Woodson’s conviction. See Wright v. State, 772 N.E.2d 449, 460

(Ind. Ct. App. 2002) (“With respect to the sufficiency of the evidence upon the element

of intoxication, it is established that a non-expert witness may offer an opinion upon

intoxication, and a conviction may be sustained upon the sole testimony of the arresting

officer.”). In short, the evidence was sufficient to support Woodson’s conviction for

Class B misdemeanor public intoxication.

      Affirmed.

FRIEDLANDER, J., and RILEY, J., concur.



                                           11
