FOR PUBLICATION

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

PATRICIA CARESS MCMATH                          GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                KATHERINE MODESITT COOPER
                                                Deputy Attorney General
                                                Indianapolis, Indiana

                                                                              FILED
                                                                        Jul 18 2012, 9:16 am


                             IN THE                                             CLERK
                                                                              of the supreme court,
                                                                              court of appeals and

                   COURT OF APPEALS OF INDIANA                                       tax court




ANNETTE PITTMAN,                                )
                                                )
      Appellant-Defendant,                      )
                                                )
             vs.                                )      No. 49A02-1112-CR-1132
                                                )
STATE OF INDIANA,                               )
                                                )
      Appellee-Plaintiff.                       )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Evan Goodman, Judge
                          Cause No. 49F10-1105-CM-32189


                                       July 18, 2012


                             OPINION - FOR PUBLICATION


FRIEDLANDER, Judge
         Annette Pittman appeals her conviction of Public Intoxication,1 a class B

misdemeanor, challenging the sufficiency of the evidence as the sole issue on appeal.

         We affirm.

         The facts favorable to the conviction are that, at approximately 3 a.m. on May 7, 2011,

Officer Ivalee Craney of the Indianapolis Metropolitan Police Department responded to a

report of trouble at a gas station on Washington Street in Indianapolis. Upon arrival, the

officer was informed by the attendant that a woman, later identified as Pittman, had appeared

at the gas station and asked to use the station’s telephone. When permission was denied,

Pittman refused to leave the station despite being asked several times to do so. When Officer

Craney approached Pittman, she noted that Pittman’s speech was slurred, she exhibited

“unsteady balance” and “swaying”, Transcript at 8 and 10, respectively, and the officer

smelled the strong odor of alcohol on Pittman’s breath. Officer Craney spoke with Pittman

for several minutes in an attempt to resolve the situation, but when Pittman refused to leave

the station and acted in a manner that the officer described as “not pleasant,” Pittman was

placed under arrest for public intoxication. Id. at 11. Officer Craney arranged to have

Pittman transported to the county jail. Pittman was found guilty as charged following a

bench trial and sentenced to 180 days, all but 2 of which was suspended to probation.

         Pittman contends the evidence was not sufficient to sustain her conviction of public

intoxication. Specifically, Pittman contends “the State failed to follow the requirements of




1
    Ind. Code Ann. § 7.1-5-1-3 (West, Westlaw through legislation effective May 31, 2012).

                                                    2
Ind. Code 12-23-15-2 to have the defendant evaluated for nonalcoholic factors that may have

contributed to her appearance of intoxication.” Appellant’s Brief at 1.

       Our standard of reviewing challenges to the sufficiency of the evidence supporting a

criminal conviction is well settled.

       When reviewing a claim that the evidence introduced at trial was insufficient
       to support a conviction, we consider only the probative evidence and
       reasonable inferences that support the trial court’s finding of guilt. We
       likewise consider conflicting evidence in the light most favorable to the trial
       court’s finding. It is therefore not necessary that the evidence overcome every
       reasonable hypothesis of innocence. Instead, we will affirm the conviction
       unless no reasonable trier of fact could have found the elements of the crime
       beyond a reasonable doubt.

Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). When considering a challenge to the

evidence, we neither reweigh the evidence nor assess the credibility of witnesses. Turner v.

State, 953 N.E.2d 1039 (Ind. 2011).

       Ind. Code Ann. § 12-23-15-2 (West, Westlaw through legislation effective May 31,

2012) states: “An individual to be taken to the city lock-up or county jail shall be evaluated at

the earliest possible time for nonalcoholic factors that may be contributing to the appearance

of intoxication.” The State offered no evidence, through Officer Craney’s testimony or

otherwise, as to what occurred after Pittman was delivered to the jail. Pittman’s conviction is

based entirely upon evidence of what Officer Craney observed of Pittman’s behavior and

condition at the scene of the incident. Pittman contends that I.C. § 12-23-15-2 requires more.

She contends that it “imposes a duty on the police to have persons arrested for public

intoxication evaluated to determine if there are reasons other than alcohol that the person

would be exhibiting signs of intoxication.” Appellant’s Brief at 3-4.

                                               3
        Our research reveals no cases discussing I.C. § 12-23-15-2, and only three cases

mentioning its predecessor, I.C. § 16-13-6.1-32(c)2 (repealed by P.L. 2-1992, § 87). Only

one of those cases sheds light on the purpose of I.C. § 12-23-15-2, and that one provides

scant little. In Parker v. State, 530 N.E.2d 128 (Ind. Ct. App. 1988), the defendant appealed

his conviction of operating a vehicle while intoxicated on ground that the evidence was

insufficient. Among other things, the defendant argued that his constitutional rights were

violated when police refused his request to administer a chemical sobriety test. The State

noted that during the same encounter, the defendant had twice refused to submit to a

chemical sobriety test before eventually asking the officers to administer one. The court held

that the defendant ran afoul of Indiana’s Implied Consent Law when he initially refused a

test, and that “in order to comply with the Implied Consent Law,3 a person must submit to the

chemical test when it is offered by the law enforcement officer.” Id. at 131. In the context

of that discussion, the court stated:

        Nor does IC 16-13-6.1-32(c) (1982) mandate the State to provide a chemical
        sobriety test for Parker. IC 16-13-6.1-32(c) merely provides that “[a]ny person
        to be taken to the city lockup or county jail shall be evaluated at the earliest
        possible time for nonalcoholic factors which may be contributing to the
        appearance of intoxication.” (Emphasis supplied). The statute neither requires
        a chemical test nor is the purpose of the statute to provide exculpatory
        evidence for a defendant. A motorist cannot manipulate these statutes to
        permit him to take a chemical sobriety test when he thinks it will be most
        favorable for him to do so.

Id.

2
  That provision stated: “Any person to be taken to the city lock-up or county jail shall be evaluated at the
earliest possible time for nonalcoholic factors which may be contributing to the appearance of
intoxication.”


                                                     4
         The foregoing passage in Parker constitutes all of the guidance our previous decisions

provide with respect to the purpose and application of the current I.C. § 12-23-15-2.

Although it is not much, it reflects that this provision does not compel the State to administer

a chemical sobriety test, or, by explication, any other particular kind of test. What it does

require is an “evaluation” for possible alternate causes (i.e., other than consumption of

alcohol) for behavior that evinces intoxication and for which the subject will otherwise be

transported to jail. Pittman’s argument assumes that this evaluation must necessarily consist

of medical or scientific testing. We cannot agree with the premise.

         The term “evaluation” does not connote testing, but instead conveys something more

general – a determination of the condition of something by careful appraisal or study. If we

construed the statute as Pittman urges, i.e., as requiring the administering of chemical or

medical tests for the purpose of discovering whether nonalcoholic factors might be the cause

of the behavior in question, then we would be saddling the State with the near-impossible

task of proving a negative. It would be tantamount to forcing the State to disprove that the

subject’s behavior was caused by anything other than ingestion of alcohol. For example, a

medical test would be required to prove that the subject had not suffered a hypoglycemic

attack, or a seizure, or a stroke, or had experienced a severe or adverse reaction to

prescription medication, or had sustained a concussion – and so on. The futility of

embarking on such a quest is obvious and surely was not what the legislature intended. We

conclude instead that the statute means what it says – having observed what appear to be


3
    See Ind. Code Ann. § 9-30-6 et seq. (West, Westlaw through legislation effective May 31, 2012).

                                                    5
behavioral symptoms of alcohol intoxication, attending officers must evaluate the situation

and the person as soon as is practicable to determine whether the suspect behavior has an

innocent cause. This may or may not require, for example, a blood test or a physical

examination. The circumstances will dictate what a reasonable evaluation entails, and most

especially whether it entails the administering of medical or chemical tests.

       In the present case, Officer Craney observed that Pittman’s speech was slurred and she

was unsteady on her feet. Pittman was belligerent and uncooperative. When she came close

enough to Pittman, Officer Craney noted that Pittman’s breath “smelled strongly” of alcohol.

Transcript at 8. Under these circumstances, the detection of the strong smell of alcohol on

Pittman’s breath obviated the need to perform any further evaluation. The detection of that

odor, coupled with her observation of Pittman’s other behaviors, in light of the totality of the

circumstances then known to Officer Craney, satisfied the statute’s requirements. Put

another way, I.C. § 12-23-15-2 did not require Officer Craney, or other law enforcement

personnel elsewhere, to perform an evaluation so thorough as to eliminate all other possible

causes for each of the symptoms of alcoholic intoxication that Pittman exhibited. Although

we can envision scenarios that would warrant further evaluation, including but not limited to

those involving behavior reasonably suggestive of mental illness or dementia, this was not

one of them. The dictates of I.C. § 12-23-15-2 were satisfied. This being Pittman’s only

challenge to the sufficiency of the evidence, the challenge fails.

       Judgment affirmed.

MAY, J., and BARNES, J., concur.


                                               6
