MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                         FILED
this Memorandum Decision shall not be                               Aug 30 2016, 8:32 am

regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven Knecht                                            Gregory F. Zoeller
Vonderheide & Knecht, P.C.                               Attorney General of Indiana
Lafayette, Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kayniece B. Davis,                                       August 30, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1511-CR-1911
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Laura Zeman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D04-1306-CM-398



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1911 | August 30, 2016       Page 1 of 6
[1]   Kayniece B. Davis challenges the sufficiency of evidence supporting her

      conviction of Class B Misdemeanor public intoxication. 1 We affirm.



                                Facts and Procedural History
[2]   On May 1, 2013, Davis called the police to report an intruder was attempting to

      enter her home. Lafayette Police Department Officers Jacob Daubenmier and

      William Meluch responded. When the officers arrived, Davis became “irate,”

      (Tr. at 20), and began “yelling that she didn’t need [the officers’] help, she’ll

      take care of it herself[.]” (Id. at 5.) “Yelling and cursing,” (id. at 5), she left her

      home and started walking down the street, saying, “[S]he’ll take care of it; she’ll

      go get him[.]” (Id. at 6.) Officer Daubenmier was concerned at this point

      because he had arrested her previously for stabbing another person.


[3]   Officer Daubenmier noted an “odor of alcoholic beverage on her exhaled

      breath.” (Id.) He also noticed Davis “had watery, bloodshot eyes; her balance

      was really poor.” (Id.) Officer Meluch could hear Davis yelling at Officer

      Daubenmier from “half a block if not further away[.]” (Id. at 16.) Officer

      Meluch also noted Davis’ “eyes were watery and bloodshot[.]” (Id. at 17.) He

      “noted the odor of an alcoholic beverage and . . . that she was unsteady on her

      feet.” (Id.)




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


      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1911 | August 30, 2016   Page 2 of 6
[4]   Davis’ friend arrived on the scene to help calm her down, but he was

      unsuccessful, telling the officers: “he didn’t think he could get her under

      control.” (Id. at 7.) The officers arrested Davis and she fought their attempt to

      place her in handcuffs. The State charged her with public intoxication for being

      intoxicated in a public place and “breach[ing] the peace or [being] in imminent

      danger of doing so [or] harass[ing], annoy[ing] or alarm[ing] another person.”

      (App. at 9.)


[5]   At trial, Davis argued she had only consumed one alcoholic beverage, was

      upset because of the intruder, and was “irate, because as soon as [the officer]

      pulled up he was you know, referring back to that – we - - (inaudible) - - our

      last, our last, our last – the last time I seen him basically which was when he

      was arrested [sic] me for the stabbing[.]” (Tr. at 20.) The trial court found her

      guilty and stated: “Her intoxication caused her actions; her anger caused her

      actions but anger does not cause you to be unsteady on your feet[.]” (Id. at 30.)



                                 Discussion and Decision
[6]   The State presented sufficient evidence to sustain Davis’ conviction. When

      reviewing sufficiency of the evidence in support of a conviction, we will

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id. We do not assess the

      credibility of the witnesses or reweigh the evidence in determining whether the

      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1911 | August 30, 2016   Page 3 of 6
      evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

      is appropriate only when no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

      required to overcome every reasonable hypothesis of innocence and is sufficient

      if an inference may reasonably be drawn from it to support the verdict. Id. at

      147.


[7]   The public intoxication statute provides four conditions by which a person may

      be convicted of the crime. Davis was charged with only two of these: “breaches

      the peace” or “harasses, annoys, or alarms another person.” Ind. Code § 7.1-5-

      1-3(a)(3&4). She asserts the State did not present sufficient evidence to prove

      she committed the sections of the statute with which she was charged. 2 To

      convict Davis of public intoxication as charged, the State had to prove she was

      intoxicated in a public place and “breach[ed] the peace or [was] in imminent

      danger of breaching the peace; or harasse[d], annoy[ed], or alarm[ed] another

      person.” Ind. Code § 7.1-5-1-3(a)(3&4). 3 To prove Davis breached the peace,

      the State had to prove she violated “public peace, order or decorum.” State v.

      Hart, 669 N.E.2d 762, 764 (Ind. Ct. App. 1996). “It is a violation or

      disturbance of the public tranquility or order and includes breaking or




      2
        A person may also be convicted of public intoxication if, while intoxicated in a public place, she endangers
      a person’s life. Davis asserts the State proved only endangerment, with which she was not charged. As the
      evidence was sufficient to convict her of the offense as charged, we need not address endangerment.
      3
          On appeal, Davis does not claim she was not intoxicated in a public place.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1911 | August 30, 2016              Page 4 of 6
      disturbing the public peace by any riotous, forceful, or unlawful proceedings.”

      Id.


[8]   Davis was yelling in the middle of the night as she walked down the middle of

      the street. She was stating she would “go get him[.]” (Tr. at 6.) The officers

      believed her statement evidenced an intent to find the alleged intruder and

      commit violence against him. When approached by her friend, she still would

      not calm down. Davis admitted she was “irate” with one of the officers

      because “he immediately started speaking on my past which is the stabbing I

      did – I had no respect for him after that because he had none for me.” (Id. at

      20.)


[9]   Screaming in the street in the middle of the night and threatening violence can

      be a breach of the peace. See Williams v. State, 989 N.E.2d 366, 371 (Ind. Ct.

      App. 2013) (defendant’s state of intoxication together with his belligerence

      towards police officers was sufficient for the trial court to find he had breached

      the peace). Davis’ arguments in her Reply Brief that her statements did not

      indicate violence toward anyone or that the violence was not imminent are

      invitations to reweigh the evidence, which we cannot do. See Drane, 867

      N.E.2d at 146 (appellate court will not reweigh evidence on appeal.) Nor was

      the State required, as Davis suggests, to prove she had in fact disturbed any

      specific neighbor’s peace. See Whited v. State, 256 Ind. 386, 389, 269 N.E.2d

      149, 151 (1971) (proof of a crowd gathering is not requisite to a conviction for

      breach of peace), opinion clarified on other grounds, 256 Ind. 618, 271 N.E.2d 513



      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1911 | August 30, 2016   Page 5 of 6
       (1971). For all these reasons, we affirm Davis’ conviction of public

       intoxication.



                                               Conclusion
[10]   As the State presented sufficient evidence to support the conviction as charged,

       we affirm.


[11]   Affirmed.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-1911 | August 30, 2016   Page 6 of 6
