Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                                     Sep 04 2014, 9:28 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                  GREGORY F. ZOELLER
Indianapolis, Indiana                          Attorney General of Indiana

ANDREW BEAN                                    CHANDRA K. HEIN
Certified Legal Intern                         Deputy Attorney General
Indianapolis, Indiana                          Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

AUBREY THOMPSON,                               )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )       No. 49A02-1307-CR-606
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Rebekah Pierson-Treacy, Judge
                      The Honorable Shatrese Flowers, Commissioner
                            Cause No. 49F19-1211-CM-78764


                                   September 4, 2014

                              OPINION ON REHEARING
RILEY, Judge

       Appellant-Defendant, Aubrey Thompson (Thompson), was convicted of public

intoxication, a Class B misdemeanor, Ind. Code § 7.1-5-1-3, on June 27, 2013. She

subsequently appealed. In a memorandum decision, our court overturned her conviction,

finding there was insufficient evidence to prove that Thompson, while intoxicated and in a

public place, had endangered either her own life or that of another person. Thompson v.

State, No. 49A02-1307-CR-606 (Ind. Ct. App. June 4, 2014). The State has petitioned for

rehearing, which we now grant for the limited purpose of clarifying our decision in light

of Thang v. State, 10 N.E.3d 1256 (Ind. 2014).

       Our supreme court issued its opinion in Thang three weeks after we decided

Thompson’s case. Like Thompson, the defendant in Thang was convicted of public

intoxication under the endangerment prongs of the Public Intoxication (P.I.) Statute.

Thang, 10 N.E.3d at 1257-58; see I.C. § 7.1-5-1-3(a)(1)-(2). The supreme court affirmed

Thang’s conviction because the evidence created a reasonable inference that he “had . . .

driv[en] his automobile on the public streets while intoxicated, thereby endangering his or

another person’s life.” Thang, 10 N.E.3d at 1260.

       The State now contends that the facts of Thang are “indistinguishable from the

present case” and, as such, our court should affirm Thompson’s conviction. (Petition for

Reh’g p. 1). In particular, the State argues that the element of endangerment is established

from the evidence that Thompson had driven herself to her friend’s apartment “in an

intoxicated state and was about to drive away when police stopped her.” (Petition for Reh’g


                                             2
p. 2). While we acknowledge that Thang has impacted our initial opinion, we disagree

with the State that it conclusively compels upholding Thompson’s conviction.

       In our memorandum decision, we reversed Thompson’s conviction for two reasons.

First, we found that Thompson never engaged in any affirmative conduct to place herself

or another person in danger.      Thompson, No. 49A02-1307-CR-606, slip op. at 7-8.

Although the police believed that Thompson intended to drive herself while in an

intoxicated state, we concluded that “speculation regarding things that could happen in the

future is not sufficient to prove the present crime of public intoxication.” Id. at 7 (quoting

Sesay v. State, 5 N.E.3d 478, 485 (Ind. Ct. App. 2014), trans. denied). Second, we found

that even if Thompson had driven herself away from the scene that night, the P.I. Statute

demands more than evidence of her intoxication to prove that she endangered her own life

or the life of another person. Id. at 10. In reaching this conclusion, we relied on the

language of the Operating While Intoxicated (OWI) Statute, which provides that it is a

Class C misdemeanor if an individual drives while intoxicated but elevates the charge to a

Class A misdemeanor if the driver is intoxicated and drives in a manner that endangers a

person. Id. at 9-10; see I.C. § 9-30-5-2. Because evidence of intoxication is not per se

evidence of endangerment under the OWI Statute, we likewise found that it would be

insufficient, by itself, to prove endangerment under the P.I. Statute. Thompson, No.

49A02-1307-CR-606, slip op. at 9-10.

       However, as the State correctly asserts, our analysis of the interplay between the

OWI Statute and the P.I. Statute has been nullified by Thang, wherein the supreme court

found the two statutes to be “wholly distinguishable.”         Thang, 10 N.E.3d at 1259.

                                              3
Accordingly, pursuant to Thang, even though the OWI Statute requires proof beyond the

driver’s intoxication to establish endangerment, the element of endangerment for the P.I.

Statute is presumed when an intoxicated individual operates a vehicle. Id. at 1259-60.

Nevertheless, we find that our first basis for reversing Thompson’s conviction—that

speculation as to whether she would have driven “does not demonstrate affirmative conduct

causing endangerment”—is reconcilable with the supreme court’s decision in Thang.

Thompson, No. 49A02-1307-CR-606, slip op. at 7.

       In Thang, a police officer stopped at a gas station and entered the restroom, during

which time Thang also appeared at the gas station. Thang, 10 N.E.3d at 1257. When the

police officer emerged from the restroom, his attention was drawn to Thang, who was

exhibiting several hallmarks of intoxication, including unsteadiness, bloodshot eyes, and

emitting an odor of alcohol. Id. The officer observed a vehicle in the gas station’s parking

lot that had not been there at the time he entered the restroom, and he noted that there was

nobody else present who could have driven Thang. Id. As a result, the officer ran a check

of the license plate and discovered that the vehicle was registered to Thang. Id. In addition,

the police officer found the keys to the vehicle in Thang’s possession. Id. From these

facts, the supreme court concluded that there was a sufficient basis for the police officer to

deduce that Thang was intoxicated and had been driving only moments beforehand, thereby

endangering his life or the life of someone else. Id. at 1260.

       Whereas the supreme court upheld Thang’s conviction because the evidence was

sufficient to infer that he had driven himself to the gas station, there is no evidence in the

present case that Thompson ever drove, or even attempted to drive. Thompson, No. 49A02-

                                              4
1307-CR-606, slip op. at 3, 9 n.2. Instead, Thompson was already present at the apartment

complex when police arrived in response to a domestic disturbance involving Thompson’s

friend. Id. at 3. After Thompson’s repeated interference with the officers’ investigation

and their subsequent warnings, Thompson retrieved her purse from her friend’s apartment

and announced to the police officers that she was leaving. Id. She was immediately

arrested based on the officers’ assumption that she was going to get into her vehicle and

drive. Id.

       Contrary to Thang, where the police officer was able to infer from the evidence that

Thang had actually driven, the officers arrested Thompson based on speculation. The

sudden appearance of Thang’s vehicle in the parking lot indicated that Thang had not

walked, and nobody else was present who could have driven him to the gas station.

Thompson, however, still might have walked home from the apartment complex, she might

have called someone to come pick her up, or she might even have decided to sleep in her

vehicle. Furthermore, in Thang, there was an immediate temporal nexus between Thang’s

arrival at the gas station and the officer’s detection of his intoxication. Thang, 10 N.E.3d

at 1260. Thus, even if the State is correct in its assertion that Thompson drove herself to

her friend’s apartment earlier that evening, her purported endangering conduct is far too

remote from the officers’ observation of her impairment to infer that she had driven while

intoxicated, thereby endangering herself or others in public. Accordingly, because the

evidence does not establish, either directly or by inference, that Thompson drove while

intoxicated, we find that the element of endangerment has not been established beyond a

reasonable doubt. Thompson’s conviction cannot stand.

                                             5
                                     CONCLUSION

       We grant the State’s petition for rehearing for the limited purpose of clarifying our

analysis in light of Thang v. State, 10 N.E.3d 1256 (Ind. 2014). We affirm our opinion in

all other respects.

ROBB, J. concurs

BRADFORD, J. dissents with separate opinion




                                             6
                              IN THE
                    COURT OF APPEALS OF INDIANA

AUBREY THOMPSON,                               )
                                               )
      Appellant-Defendant,                     )
                                               )
              vs.                              )    No. 49A02-1307-CR-606
                                               )
STATE OF INDIANA,                              )
                                               )
      Appellee-Plaintiff.                      )




BRADFORD, Judge, dissenting.

      I agree with the majority that the evidence does not establish the “immediate

temporal nexus” between past driving and present intoxication from which it would be

reasonable to infer that Thompson had driven to Robinson’s apartment while intoxicated.

See Tin Thang v. State, 10 N.E.3d 1256, 1260 (Ind. 2014). However, because I believe

Thompson endangered her life or that of another person by attempting to drive away from

the apartment while intoxicated, I respectfully dissent. See generally Sesay v. State, 5

                                           7
N.E.3d 478, 487 (Ind. Ct. App. 2014) (Bradford, J. concurring in result) (reading the

definition of endangerment to require only that the individual bring himself or another into

danger or peril of probable harm or loss, as opposed to actual harm or loss). The record

reveals that Thompson retrieved her purse from Robinson’s apartment and, as she was

leaving, “advised [the officers] that she was going to be driving away.” Tr. p. 12.

       Indiana’s public intoxication statute specifically “promotes public policy

encouraging inebriated persons to avoid creating dangerous situations [such as] driving

while intoxicated.” Thang, 10 N.E.3d at 1259 (quoting Stephens v. State, 992 N.E.2d 935,

938 (Ind. Ct. App. 2012), trans. denied). Where, as here, an intoxicated person is leaving

the company of police officers and announces her intent to drive away, that person has not

been encouraged by the statute, and I do not believe police must wait for her to operate her

vehicle before arresting her for public intoxication. See id. at 1259-60 (holding that

operating a vehicle while intoxicated constitutes endangerment under Indiana’s public

intoxication statute).

       For the foregoing reasons, I would affirm the judgment of the trial court.




                                             8
