                                                                      FILED
                                                                  Mar 07 2018, 6:41 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Mark Small                                                Curtis T. Hill, Jr.
      Indianapolis, Indiana                                     Attorney General of Indiana

                                                                Chandra K. Hein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
             COURT OF APPEALS OF INDIANA

      Jeffrey S. Morris,                                        March 7, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                42A05-1709-CR-2059
                 v.                                             Appeal from the Knox Superior
                                                                Court
      State of Indiana,                                         The Honorable Ryan S.
      Appellee-Plaintiff                                        Johanningsmeier, Judge
                                                                Trial Court Cause No.
                                                                42D02-1706-CM-515



      May, Judge.


[1]   Jeffrey S. Morris appeals his conviction of Class B misdemeanor public

      intoxication. 1 Morris argues the State did not provide sufficient evidence to



      1
          Ind. Code § 7.1-5-1-3 (2012).


      Court of Appeals of Indiana | Opinion 42A05-1709-CR-2059 | March 7, 2018                Page 1 of 6
      support his conviction. Because the State failed to provide evidence to

      demonstrate Morris’s alleged intoxication was due to “alcohol or a controlled

      substance,” Indiana Code section 7.1-5-1-3, as required by the statute defining

      public intoxication, we reverse.



                        Facts and Procedural History
[2]   On June 14, 2017 between 6:30 and 7:00 a.m., Vincennes Police Officer Robert

      Hammond was dispatched to investigate a man wearing only underwear.

      Upon arrival, Officer Hammond identified the individual as Morris. Morris

      was in the roadway, wearing just underwear, sweating profusely, and

      displaying signs of paranoia. Officer Hammond instructed Morris to remain

      inside his house the rest of the day.


[3]   Over the course of the next four hours, Officer Hammond responded to four

      more calls regarding Morris. Each time Officer Hammond found Morris in the

      same condition: wearing only underwear, sweating profusely, and acting

      paranoid. The fifth time Officer Hammond responded to a call regarding

      Morris, Morris was waiting in front of a house to retrieve his bicycle. Officer

      Hammond arrested Morris for public intoxication.


[4]   The State charged Morris with Class B misdemeanor public intoxication. At

      Morris’ bench trial, Officer Hammond testified he arrested Morris based on

      paranoia, profuse sweating, and previous experiences with Morris where

      Officer Hammond speculated Morris had been under the influence of bath salts.


      Court of Appeals of Indiana | Opinion 42A05-1709-CR-2059 | March 7, 2018   Page 2 of 6
      Officer Hammond testified he believed Morris was “potentially under the

      influence of bath salts.” (Tr. at 8.) In its decision, the trial court stated:


              I think there are two main issues here today, one is intoxication
              and then the other is whether there was breaching the peace. I’m
              going to find that there was breaching the peace based on his
              appearance as well as the officer’s observation of his behavior.
              I'm also going to find that there was intoxication based on the
              officer’s prior contact with, with Mr. Morris and what the officer
              observed, especially paranoia and when compared to the past
              contact. So I'm going to enter Guilty on the charge of Public
              Intoxication as a Class B Misdemeanor.


      (Id. at 26.) The trial court found Morris guilty of Class B misdemeanor public

      intoxication and sentenced Morris to 180 days, with sixty executed and one

      year on probation.



                            Discussion and Decision
[5]   Morris argues the State provided insufficient evidence to convict him of public

      intoxication. When considering the sufficiency of evidence, “a reviewing court

      does not reweigh the evidence or judge the credibility of the witnesses.”

      McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We must 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. at 126 (internal citation omitted).


[6]   To prove Morris committed Class B misdemeanor public intoxication, the State

      had to present sufficient evidence Morris was: (1) in a public place, (2) in a state

      Court of Appeals of Indiana | Opinion 42A05-1709-CR-2059 | March 7, 2018         Page 3 of 6
      of intoxication from alcohol or a controlled substance, and (3) breached the

      peace or was in imminent danger of doing so. See Ind. Code § 7.1-5-1-3(a)(3)

      (relevant elements of Class B misdemeanor public intoxication). Morris does

      not challenge that Officer Hammond found him in a public place. Instead, he

      challenges the State’s proof of his intoxication and of his breach or imminent

      breach of the peace. We need address only the adequacy of the State’s proof of

      Morris’ intoxication to reverse. See Clark v. State, 978 N.E.2d 1191, 1197 (Ind.

      Ct. App. 2012) (“The State has an obligation to prove every element of a

      charged crime.”), aff’d on reh’g 985 N.E.2d 1095 (Ind. Ct. App. 2013).


[7]   In Upp v. State, 808 N.E.2d 706 (Ind. Ct. App. 2004), Upp appealed his

      conviction of public intoxication. Upp argued he could not be convicted of

      public intoxication because his intoxication was caused by sniffing glue, which

      is not a controlled substance. We held: “In the present case, the cause of

      [Upp’s] intoxication was from sniffing glue. There was no evidence that his

      intoxication was the result of the use of alcohol or a controlled substance as

      defined by statute.” Id. at 707. We accordingly reversed Upp’s conviction of

      public intoxication.


[8]   Here, the State similarly failed to provide any evidence that Morris was

      intoxicated on a controlled substance. 2 Officer Hammond described Morris as




      2
       There is no suggestion in the record that Morris consumed any alcohol. In fact, on cross-examination,
      Morris’ counsel asked Officer Hammond a series of questions in which Officer Hammond denied that Morris
      had smelled of alcohol, had slurred speech, glassy or bloodshot eyes, or had an unsteady gait.

      Court of Appeals of Indiana | Opinion 42A05-1709-CR-2059 | March 7, 2018                    Page 4 of 6
      “profusely sweating . . . and acting paranoid,” (Tr. at 7), and testified he

      believed Morris was “potentially under the influence of bath salts.” (Id. at 8.)

      While bath salts can contain a controlled substance, see Elvers v. State, 22 N.E.3d

      824, 835 (Ind. Ct. App. 2014) (“Elvers was in possession of nearly 1,000

      different packages of spice and bath salt products, and of the samples submitted

      to the State Police Lab, nearly all tested positive for a controlled substance.”),

      our system of justice does not permit citizens to be convicted on a potential of

      illegality. See Sesay v. State, 5 N.E.3d 478, 485 (Ind. Ct. App. 2014)

      (“speculation” is insufficient for proof of elements required for conviction),

      trans. denied.


[9]   To demonstrate Morris had been under the influence of a controlled substance,

      the State could have provided the results of chemical tests on one of Morris’

      bodily fluids. See Bryce v. State, 545 N.E.2d 1094, 1097 (Ind. Ct. App. 1989)

      (urine test showed cocaine was in the subject’s system), trans. denied. The State

      also could have qualified an officer as an expert witness based on the officer

      having the specific training and experiences to form “rationally based

      perceptions.” See Stephenson v. State, 742 N.E.2d 463, 480-81(Ind. 2001) (officer

      testified to experience and training), cert. denied 534 U.S. 1105 (2002).

      However, Officer Hammond offered no testimony about his training with




      Court of Appeals of Indiana | Opinion 42A05-1709-CR-2059 | March 7, 2018    Page 5 of 6
       regard to the effects of being under the influence of bath salts such that he could

       have qualified as such an expert. 3



                                             Conclusion
[10]   Because the State failed to present more than speculation that Morris was under

       the influence of a controlled substance, we conclude the evidence was

       insufficient to prove Morris committed Class B misdemeanor public

       intoxication, and we accordingly reverse Morris’ conviction.


       Reversed.


       Vaidik, C.J., and Altice, J., concur.




       3
        Officer Hammond did testify that he had prior experience with Morris when Morris had taken bath salts,
       but Officer Hammond also testified that Morris had denied being on bath salts on those prior occasions. As
       Officer Hammond did not provide any proof that his prior experiences with Morris had occurred when
       Morris had, in fact, been on bath salts, we fail to see the relevance of those experiences for proving the cause
       of Morris’ behavior on the day at issue herein.

       Court of Appeals of Indiana | Opinion 42A05-1709-CR-2059 | March 7, 2018                             Page 6 of 6
