MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                             Jul 21 2015, 7:07 am
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
Patricia Caress McMath                                    Gregory F. Zoeller
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Clayton Labarr,                                           July 21, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A04-1411-CR-523
        v.                                                Appeal from the Marion Superior
                                                          Court.
                                                          The Honorable Shatrese Flowers,
State of Indiana,                                         Judge Pro Tempore.
Appellee-Plaintiff                                        Cause No. 49G19-1407-CM-34952




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-523 | July 21, 2015            Page 1 of 5
[1]   Clayton Labarr appeals his conviction for Public Intoxication, 1 a class B

      misdemeanor. Labarr argues that there is insufficient evidence establishing that

      he was endangering his own life. Finding sufficient evidence, we affirm.


                                                     Facts
[2]   In the early morning hours of July 12, 2014, Indiana State Excise Police Officer

      Randy Weitzel was outside of Brothers Bar and Grill on Broad Ripple Avenue

      when he saw a taxicab minivan pull up to the curb. The taxi driver asked

      Officer Weitzel for help in removing two men, later identified as Labarr and his

      brother, Cory Labarr, from the taxi.


[3]   Officer Weitzel approached the taxi and observed Labarr lying down on the

      floor of the van between two seats. Officer Weitzel poked Labarr in the leg and

      shook his foot, asking him to sit up and get out of the van, but Labarr was

      nonresponsive. To remove Labarr from the van, Officer Weitzel grabbed

      Labarr’s wrist and forcibly pulled him out of the van. Labarr then stood for a

      “brief moment” as Officer Weitzel handcuffed him, but as the officer escorted

      Labarr to the curb, Labarr’s legs went limp and he was unable to walk. Tr. p.

      12, 15-16. Officer Weitzel noticed a strong odor of alcohol on Labarr’s person

      and breath.




      1
          Ind. Code § 7.1-5-1-3.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-523 | July 21, 2015   Page 2 of 5
[4]   As Officer Weitzel seated Labarr on the curb next to his brother, Labarr

      collapsed onto Cory’s lap. Officer Weitzel called for an ambulance, and before

      the ambulance arrived, Labarr vomited into his brother’s lap and onto the

      street. Labarr was unconscious during most of this time; although the officers

      were able to rouse him momentarily, he “never really came to[.]” Id. at 18.

      Labarr was taken to Eskenazi Hospital, where he spent part of the night before

      being transported to jail.


[5]   On July 12, 2014, the State charged Labarr with class B misdemeanor public

      intoxication. Following a bench trial on October 16, 2014, the trial court found

      Labarr guilty as charged, sentencing him to 180 days, fully suspended, and

      ordered him to complete forty-eight hours of community service. Labarr now

      appeals.


                                   Discussion and Decision
[6]   Labarr’s sole argument on appeal is that the evidence is insufficient to support

      the conviction. When we review a challenge to the sufficiency of the evidence,

      we neither reweigh the evidence nor assess witness credibility. McClellan v.

      State, 13 N.E.3d 546, 548 (Ind. Ct. App. 2014), trans. denied. Instead, we

      consider only the probative evidence supporting the conviction and the

      reasonable inferences to be drawn therefrom. Id. If there is substantial

      evidence of probative value from which a reasonable factfinder could have

      drawn the conclusion that the defendant was guilty beyond a reasonable doubt,

      then the verdict will not be disturbed. Id.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-523 | July 21, 2015   Page 3 of 5
[7]    To convict Labarr of class B misdemeanor public intoxication, the State was

       required to prove beyond a reasonable doubt that he was in a public place, in a

       state of intoxication caused by alcohol use, and that he endangered his own life.

       I.C. § 7.1-5-1-3(a)(1). Labarr argues that there is insufficient evidence

       supporting the State’s allegation that he endangered his own life.


[8]    Our Supreme Court has explained that in public intoxication cases, as in all

       other cases, “when determining whether the elements of an offense are proven

       beyond a reasonable doubt, a fact-finder may consider both the evidence and the

       resulting reasonable inferences.” Thang v. State, 10 N.E.3d 1256, 1260 (Ind. 2014)

       (emphasis original). In other words, inferences with respect to the elements of

       the public intoxication statute must “be based on supporting evidence of

       probative value.” Id.


[9]    Here, the record reveals that when Officer Weitzel first encountered Labarr, he

       was unconscious on the floor of a minivan. Not only was Labarr not wearing a

       seat belt, he was not even sitting in a seat. Throughout nearly the entire

       incident, Labarr was unconscious, nonresponsive, and unable to stand or walk.

       He did not display an awareness of his surroundings or interactions. He

       eventually passed out onto his brother and vomited into the street.


[10]   We find that this evidence is sufficient to support a reasonable inference that

       Labarr endangered himself. He was transported in a minivan without a seat

       belt and without sitting in a seat. He was unconscious and, without the officer’s

       assistance, would have been left on a public street near a busy bar in the middle


       Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-523 | July 21, 2015   Page 4 of 5
       of the night. Labarr’s state of intoxication left him vulnerable to injuries

       resulting from traffic accidents, falling down, and being victimized by

       passersby.


[11]   Labarr directs our attention to two cases that he contends support his argument.

       We find both to be distinguishable. In Sesay v. State, the defendant’s public

       intoxication conviction was overturned where he had been “standing peaceably

       several feet off the road beside a car that had been driven into a ditch.” 5

       N.E.3d 478, 486 (Ind. Ct. App. 2014), trans. denied. Sesay seemed unsteady on

       his feet but never fell over. In Davis v. State, the defendant was seen stumbling

       around outside in the common areas of an apartment complex, but there was

       no evidence that he had approached the busy roads outside of the complex. 13

       N.E.3d 500, 504 (Ind. Ct. App. 2014). In the instant case, however, Labarr was

       unconscious throughout nearly all of the incident, which occurred directly on a

       busy road. Therefore, we find both Sesay and Davis inapposite.


[12]   Based on the evidence in the record, the trial court could reasonably conclude

       beyond a reasonable doubt that Labarr was intoxicated in a public place while

       endangering his own life. We reject Labarr’s claim of insufficient evidence.


[13]   The judgment of the trial court is affirmed.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-523 | July 21, 2015   Page 5 of 5
