MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Nov 15 2019, 10:09 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Valerie K. Boots                                        Curtis T. Hill, Jr.
Talisha R. Griffin                                      Attorney General of Indiana
Marion County Public Defender Agency
                                                        Lauren A. Jacobsen
Appellate Division                                      Deputy Attorney General
Indianapolis, Indiana                                   Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Durrand Anthony Jones,                                  November 15, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1362
        v.                                              Appeal from the
                                                        Marion Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     William J. Nelson, Judge
                                                        Trial Court Cause No.
                                                        49G18-1805-F6-14428



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019                Page 1 of 6
[1]   Durrand Anthony Jones (“Jones”) was convicted of resisting law enforcement

      by flight,1 a Class A misdemeanor, and public intoxication, 2 a Class B

      misdemeanor. On appeal, he contends that the evidence was insufficient for his

      public intoxication conviction because there was no evidence he was

      intoxicated from a controlled substance or alcohol.3


[2]   We reverse and remand.


                                      Facts and Procedural History
[3]   On May 1, 2018, an unidentified person called dispatch for the Indianapolis

      Metropolitan Police Department (“IMPD”) and requested a welfare check on a

      man who was “staggering in and out of traffic falling down” near the

      intersection of Fairfield Avenue and College Avenue in Indianapolis. Tr. Vol. II

      at 9. A search was commenced by three IMPD officers who were on duty at

      the time: Officer Jeremiah Heckel (“Officer Heckel”); Officer Robert Cosler

      (“Officer Cosler”); and Officer Richard Faulkner (“Officer Faulkner”). Id. at 5,

      9, 15. Officer Heckel spotted Jones and observed him stumble over a curb, trip

      into the street, and barely avoid being struck by a passing vehicle. Id. at 13.


[4]   Based on this stumble, and because from a distance Jones’s eyes appeared to be

      “wide open and glossy,” Officer Heckel approached Jones. Id. at 10. Jones,




      1
          See Ind. Code § 35-44.1-3-1(a)(3).
      2
          See Ind. Code § 7.1-5-1-3(a).
      3
          Jones does not challenge his conviction for resisting law enforcement by flight.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019      Page 2 of 6
      meanwhile, was feeling the effects of recently smoking “K.” Id. at 20-21.

      Officer Heckel asked whether he could talk with Jones. Id. Jones declined

      Officer Heckel’s request and continued walking. Id. at 10. Officer Heckel

      continued to ask if he could talk with Jones, and Jones continued to deny this

      request. Id. When Jones had crossed the street, Officer Heckel caught up to

      Jones and grabbed his wrist to detain Jones. Id. Jones fought back by “forcibly

      jerk[ing] his arm away” and beginning to run. Id.


[5]   Meanwhile, Officer Cosler had approached Jones and Officer Heckel when

      they had begun to struggle. Id. at 15. Once Jones started running, Officer

      Cosler tackled him, and Jones and Officer Cosler began fighting. Id. at 15-16.

      During this fight, Officer Faulkner arrived. Id. at 16. He sprayed Jones with

      pepper spray, “delivered three knee strikes” to the left side of Jones’s body, and

      then all three officers subdued Jones. Id.


[6]   On May 3, 2018, the State charged Jones with Count I, Level 6 felony resisting

      law enforcement; Count II, Class A misdemeanor resisting law enforcement by

      flight; and Count III, Class B misdemeanor public intoxication. Appellant’s App.

      Vol. II at 15. On May 15, 2019, the trial court held a bench trial after which

      Jones was found guilty of Class A misdemeanor resisting law enforcement by

      flight and Class B misdemeanor public intoxication. Id. at 11. The trial court

      imposed concurrent sentences of one year for Jones’s resisting law enforcement

      conviction and 180 days for his public intoxication conviction, with all time

      suspended except for time Jones had already served. Id. Jones now appeals.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019   Page 3 of 6
                                     Discussion and Decision
[7]   Jones claims there was insufficient evidence to support his public intoxication

      conviction because there was no evidence he was intoxicated from alcohol or a

      controlled substance. When we review the sufficiency of the evidence, we do

      not reweigh the evidence or judge the credibility of the witnesses. McHenry v.

      State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, we will affirm a conviction if

      we find that any reasonable factfinder could find a defendant guilty beyond a

      reasonable doubt when considering all the facts and inferences that favor the

      conviction. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). The evidence

      need not exclude every reasonable hypothesis of innocence, but it must support

      a reasonable inference of guilt to support the verdict. Drane v. State, 867 N.E.2d

      144, 147 (Ind. 2007).


[8]   To obtain a conviction for Class B misdemeanor public intoxication, the State

      was required to show, inter alia, that Jones was in a public place in a state of

      intoxication caused by Jones’s “use of alcohol or a controlled substance . . . .”

      Ind. Code § 7.1-5-1-3(a). A controlled substance is “a drug, substance, or

      immediate precursor in schedule I, II, III, IV, or V under: (1) IC 35-48-2-4, IC

      35-48-2-6, IC 35-48-2-8, IC 35-48-2-10, or IC 35-48-2-12, if IC 35-48-2-14 does

      not apply . . . .” Ind. Code § 35-48-1-9.


[9]   Jones claims there was no evidence that he was in a state of intoxication caused

      by a controlled substance. He correctly observes that, at most, the evidence

      shows that he was high on “K” during his encounter with the three officers. Tr.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019   Page 4 of 6
       Vol. II at 19-22. However, neither the testimony of Jones nor that of the officers

       identified what “K” was, and no one testified that “K” was a controlled

       substance. Moreover, “K” is not identified as a “controlled substance” under

       the statutes that define that term. See I.C. § 35-48-1-9; I.C. § 35-48-2-4; I.C. §

       35-48-2-6; I.C. § 35-48-2-8; I.C. § 35-48-2-10; I.C. § 35-48-2-12; and I.C. § 35-48-

       2-14. Notably, the State does not argue that “K” is a controlled substance, and

       even concedes that when Jones admitted to being high on “K,” Jones was likely

       referring to a different, unrelated case.


[10]   The State goes even further by conceding the evidence was insufficient to show

       that Jones was intoxicated by any substance, whether a controlled substance or

       alcohol. More specifically, the State admits: 1) the only evidence of

       intoxication came from Officer Faulkner’s testimony about the call from IMPD

       dispatch that a man was staggering into traffic and from Officer Heckel’s

       testimony that he approached Jones because his eyes, from a distance, looked

       glossy and because he saw Jones stumble once into the street; and 2) even

       though all three officers closely encountered Jones during their fight with him,

       none testified that they saw any signs of intoxication or smelled any odors

       indicating intoxication. Tr. Vol. II at 4-18. The State concludes, “Jones’s one

       stumble is not sufficient to prove Jones was intoxicated.” Appellee’s Br. at 8.


[11]   Thus, the State failed to present sufficient evidence that Jones was in a public

       place in a state of intoxication caused by either a controlled substance or

       alcohol, so we reverse Jones’s conviction for public intoxication and remand to

       the trial court to vacate Jones’s conviction. See I.C. § 35-48-1-9. Because we

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019   Page 5 of 6
       reverse Jones’s conviction for insufficient evidence, the State may not retry

       Jones on this charge. “[T]he Double Jeopardy Clause bars retrial when the

       defendant’s conviction is reversed due to insufficient evidence because such a

       reversal is tantamount to an acquittal.” Dexter v. State, 959 N.E.2d 235, 240

       (Ind. 2012) (citing Burks v. United States, 437 U.S. 1, 16-17 (1978)).


[12]   Reversed and remanded.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1362 | November 15, 2019   Page 6 of 6
