FOR PUBLICATION                                                        Aug 15 2013, 5:32 am




ATTORNEY FOR APPELLANT:

TIMOTHY J. BURNS
Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

DANNY STEPHENS,                                 )
                                                )
      Appellant-Defendant,                      )
                                                )
             vs.                                )      No. 49A04-1301-CR-18
                                                )
STATE OF INDIANA,                               )
                                                )
      Appellee-Plaintiff.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                   The Honorable Shannon L. Logsdon, Master Commissioner
                             Cause No. 49F07-1210-CM-69343



                                     August 15, 2013


                             OPINION - FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Danny Stephens got drunk at home, was assaulted by his niece’s boyfriend, and left

the house when the police failed to arrest the boyfriend. He went to a public place and

called the police, admitting that he was drunk and requesting that they take him to jail so that

he would not have to return home. The State charged him with class B misdemeanor public

intoxication, and a trial court convicted him as charged.

       Stephens now appeals, challenging the sufficiency of evidence to support his

conviction. Finding the evidence insufficient to establish that Stephens endangered either his

life or another person’s life, breached the peace or was in imminent danger of breaching the

peace, or harassed, annoyed, or alarmed another person, we reverse.

                               Facts and Procedural History

       In October 2012, Stephens lived with his niece, who had guardianship over him due to

a brain injury he had suffered seven years earlier. On October 6, 2012, police were

dispatched to their residence to investigate an altercation between Stephens’s niece and her

boyfriend, during which the boyfriend body-slammed Stephens. Police made no arrests and

left the home. Shortly thereafter, Stephens, who had been drinking alcohol, walked to a

nearby convenience store and called the police. Minutes later, Indianapolis Metropolitan

Police Officer Freddie Haddad arrived in the store parking lot, and Stephens waved and

approached his police vehicle. Officer Haddad noticed that Stephens smelled of alcohol and

had bloodshot eyes, slurred speech, and an unsteady gait. Stephens told Officer Haddad that

he was very drunk and had been drinking all night. He requested that the officer take him to


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jail, explaining that he did not want to return home because of an altercation with his niece’s

boyfriend just minutes earlier. He reported to Officer Haddad that the police had responded

to the altercation but had made no arrests. Stephens told the officer that he would prefer to

go to jail because, if he went home, “another fight would ensue and police would just get

called back there.” Tr. at 9. Officer Haddad placed him under arrest and took him to jail.

       The State charged Stephens with class B misdemeanor public intoxication. Following

a bench trial, the trial court found him guilty as charged. This appeal ensued.

                                  Discussion and Decision

       Stephens challenges the sufficiency of evidence to support his conviction. To convict

Stephens, the State bore the burden of proving each element of the charged offense beyond a

reasonable doubt. Moore v. State, 673 N.E.2d 776, 779 (Ind. Ct. App. 1996), trans. denied

(1997). When reviewing insufficiency of evidence claims, we neither reweigh evidence nor

judge witness credibility. Mathews v. State, 978 N.E.2d 438, 443 (Ind. Ct. App. 2012), trans.

denied (2013). Instead, we examine the evidence and reasonable inferences most favorable

to the judgment. Id. If there is evidence of probative value from which a reasonable trier of

fact could find the defendant guilty beyond a reasonable doubt, we will affirm. Id.

       Here, the State did not file an appellee’s brief. Thus, we apply a less stringent

standard of review and will reverse if Stephens establishes prima facie error, which is “error

at first sight, on first appearance, or on the face of it.” Castillo-Aguilar v. State, 962 N.E.2d

667, 669 (Ind. Ct. App. 2012), trans. denied. The prima facie error standard relieves us of

the burden of controverting Stephens’s arguments, but it does not relieve us of our obligation


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to properly decide the law as applied to the facts of the case. Id.

       Stephens was convicted of class B misdemeanor public intoxication, which is defined

in pertinent part as follows:

       … it 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 or
       a controlled substance (as defined in IC 35-48-1-9), 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).

       Stephens first asserts that the evidence is insufficient to establish that he was

intoxicated. “‘Intoxicated’ means 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.” Ind. Code § 9-13-2-86. The State may establish impairment by presenting

evidence of: “(1) the consumption of a 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.” Williams v. State, 989

N.E.2d 366, 369 (Ind. Ct. App. 2013) (citation omitted). Here, Officer Haddad testified that

he smelled alcohol on Stephens’s breath and body and that Stephens had bloodshot eyes,

slurred speech, and an unsteady gait. He also testified that Stephens told him that he had

been drinking all night and was “very drunk.” Tr. at 8-9. Thus, the evidence most favorable


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to the judgment is sufficient to support a finding that Stephens was intoxicated. Stephens’s

arguments to the contrary amount to an invitation to reweigh evidence and judge witness

credibility, which we may not do.

       Stephens also challenges the sufficiency of evidence to support a finding that he either

endangered himself or others, breached or was in imminent danger of breaching the peace, or

harassed, annoyed, or alarmed another person. Notably, the General Assembly added these

elements to the public intoxication statute in 2012, making it no longer a crime simply to be

intoxicated in public. The addition of these elements promotes public policy encouraging

inebriated persons to avoid creating dangerous situations by walking, catching a cab, or

riding home with a designated driver rather than driving while intoxicated. Because the

amendment became effective in July 2012, we have little precedent concerning the new

language.

       In Williams, another panel of this Court affirmed the defendant’s conviction under the

amended version of the statute, where the defendant showed signs of extreme intoxication

and belligerently refused police officers’ orders to move out of the street after his friend was

struck by a vehicle, requiring officers to forcibly escort him to the sidewalk. 989 N.E.2d at

370-71. The Williams court found this evidence sufficient to show that while intoxicated in

public, the defendant “endangered himself or others, breached the peace, or harassed,

annoyed, or alarmed another person.” Id. at 371.

       In contrast, here, Stephens was initially in a private place where he had every right to

be intoxicated. When police made no arrests after he was assaulted in his home by his


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niece’s boyfriend, Stephens sought to extricate himself from the situation by walking to a

public place, calling the police, stating that he was drunk, and requesting that he be taken to

jail rather than returning to the dangerous situation at home. Simply put, he was asking the

police for help. The mere fact that he was intoxicated in a public parking lot did not amount

to a violation of the public intoxication statute. He did not breach the peace, and to the extent

the trial court reasoned that he was in “imminent danger of breaching the peace” if he

returned home, we find such a conclusion to be speculative. The danger, if any, was that he

would be the victim of another assault, not the perpetrator.

       In sum, Stephens has made a prima facie showing that the State failed to prove beyond

a reasonable doubt that he endangered either himself or others, breached or was in imminent

danger of breaching the peace, or harassed, annoyed, or alarmed another person. As such,

the evidence is insufficient to support his conviction for public intoxication. Accordingly,

we reverse.

       Reversed.

BARNES, J., and PYLE, J., concur.




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