                                                                        FILED
                                                                  Sep 12 2019, 10:43 am

                                                                        CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Andrew Stebbins                                           Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana                                     Josiah Swinney
                                                          Deputy Attorney General
                                                          Michael Sherman
                                                          Certified Legal Intern
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Danish Pulido,                                            September 12, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-834
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Steven Rubick,
Appellee-Plaintiff.                                       Magistrate
                                                          Trial Court Cause No.
                                                          49G10-1803-CM-008898



Pyle, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019                      Page 1 of 12
                                        Statement of the Case
[1]   Danish Pulido (“Pulido”) appeals his conviction, following a bench trial, for

      Class B misdemeanor public intoxication.1 Pulido argues that there was

      insufficient evidence to support his conviction, specifically challenging the

      endangerment element. Concluding that the State failed to prove beyond a

      reasonable doubt that Pulido endangered his own life as required by the public

      intoxication statute, we reverse his conviction.


[2]   We reverse.


                                                      Issue
                       Whether sufficient evidence supports Pulido’s conviction.


                                                      Facts
[3]   On March 10, 2018, Indianapolis Metropolitan Police Department Officer

      Danielle Lewis (“Officer Lewis”) responded to a dispatch from an anonymous

      9-1-1 caller who had reported that a “male subject was staggering . . . on[] the

      sidewalk” and was “walking adjacent to the city street.” (Tr. 3, 4). The officer

      went to an intersection near “West 30th Street and Muslim Drive” and noticed a

      man, later identified as Pulido, who “was staggering[.]” (Tr. 3, 4). The officer

      yelled for Pulido to stop, and he did. At that point, Pulido had “a hard time

      maintaining a balance while standing straight[,] . . . was kind of swaying while




      1
          IND. CODE § 7.1-5-1-3.


      Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019        Page 2 of 12
      standing[, and] had to keep using his arms to regain his balance.” (Tr. 4).

      Officer Lewis “also noticed that he had red glassy eyes, and slurred speech.”

      (Tr. 4). She “believed” that Pulido was “heavily intoxicated.” (Tr. 5). The

      officer asked Pulido “if he was okay, . . . where he was headed to[], [and] where

      he lived[,]” and Pulido “told [her] that he did not know any of those things.”

      (Tr. 4). Officer Lewis “was worried about his welfare” and asked Pulido if

      “there was somebody that [she] could call to come pick him up[.]” (Tr. 4).

      Pulido “said he did not because he was quote ‘so drunk right now[.]’” (Tr. 4).

      Officer Lewis then arrested Pulido.


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

      charging information alleged, in relevant part, that Pulido had “endangered his

      life” under INDIANA CODE § 7.1-5-1-3(a)(1). (App. Vol. 2 at 12). On March

      15, 2019, the trial court held a bench trial, and the State presented one witness.

      Officer Lewis testified to the facts set forth above. During the officer’s

      testimony, Pulido’s counsel raised a hearsay objection when Officer Lewis

      testified that she had been dispatched to the scene based on an anonymous 9-1-

      1 caller who had reported that a male was staggering on the sidewalk. The trial

      court overruled the objection, stating that the “nature of the 9-1-1 call [wa]s

      admissible.” (Tr. 3).


[5]   During closing arguments, the State argued that it had “met its burden” and

      had shown “actual danger” based on “the 9-1-1 call[.]” (Tr. 5). Pulido’s

      counsel again objected, arguing that the 9-1-1 call could not be used as

      substantive evidence, and the trial court sustained his objection. The State then

      Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019        Page 3 of 12
      argued that Pulido’s “own statement[s] that he did not know where he was

      going” and “did not know who to call” had “met the element of

      endangerment[.]” (Tr. 5-6).


[6]   Pulido’s counsel cited to Sesay v. State, 5 N.E.3d 478 (Ind. Ct. App. 2014) and

      Davis v. State, 13 N.E.3d 500 (Ind. Ct. App. 2014) and argued that the State had

      failed to prove the endangerment element because there was no evidence that

      Pulido had “actually endangered himself.” (Tr. 6). Pulido’s counsel pointed

      out that “there was no evidence that [Pulido] . . . was ever in any danger of

      being hit by a vehicle or of hurting himself in any way.” (Tr. 6). He also

      argued that the evidence, which showed merely that Pulido was staggering on a

      sidewalk, was “not enough . . . to prove endangerment.” (Tr. 6).


[7]   The trial court found Pulido guilty as charged. When entering its verdict, the

      trial court specifically addressed Pulido’s argument regarding the evidence of

      the endangerment as follows: “The officer testified the young man [Pulido] was

      staggering next to a city street, Court finds that satisfies the obligation of

      proving endangerment.” (Tr. 6). The trial court imposed a 180-day sentence

      with 178 days suspended and credit for time served. Pulido now appeals.


                                                   Decision
[8]   Pulido argues that the evidence was insufficient to support his conviction for

      Class B misdemeanor public intoxication. He does not challenge the evidence

      that he was intoxicated in a public place. His sole argument is that the State

      failed to prove beyond a reasonable doubt that he had endangered his life.

      Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019       Page 4 of 12
[9]    Our standard of review for challenges to the sufficiency of the evidence is well

       settled.


               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder would find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

       and citations omitted) (emphasis in original). Additionally, our Indiana

       Supreme Court has explained that “when determining whether the elements of

       an offense are proven beyond a reasonable doubt, a fact-finder may consider

       both the evidence and the resulting reasonable inferences.” Thang v. State,

       10 N.E.3d 1256, 1260 (Ind. 2014) (emphasis in original).


[10]   In 2012, our legislature amended the public intoxication statute, INDIANA

       CODE § 7.1-5-1-3, “to add the four conduct elements to the definition of public

       intoxication so that it is no longer a crime to simply be intoxicated in public.”

       Milam v. State, 14 N.E.3d 879, 881 (Ind. Ct. App. 2014). See also Stephens v.

       State, 992 N.E.2d 935, 938 (Ind. Ct. App. 2013). The amended public

       Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019         Page 5 of 12
       intoxication statute in effect at the time of Pulido’s crime, provided, in relevant

       part, as follows:


               . . . it is a Class B misdemeanor for a person to be in a public
               place . . . in a state of intoxication caused by the person’s use of
               alcohol . . . , if the person:

                        (1) endangers the person’s life;

                        (2) endangers the life of another person;

                        (3) breaches the peace or is in imminent danger of
                        breaching the peace; or

                        (4) harasses, annoys, or alarms another person.

       I.C. § 7.1-5-1-3(a). Our supreme court explained that “[t]he legislature’s

       modifications to the Public Intoxication statute were in apparent response to

       th[e] [Indiana Supreme] Court’s decision in 2011 that affirmed the conviction of

       an automobile passenger for Public Intoxication.” Thang, 10 N.E.3d at 1260

       (citing Moore v. State, 949 N.E.2d 343 (Ind. 2011)). The purpose of the

       additional conduct elements in INDIANA CODE § 7.1-5-1-3(a)(1)-(4) is to

       “further the public policy of ‘encouraging inebriated persons to avoid creating

       dangerous situations by walking, catching a cab, or riding home with a

       designated driver rather than driving while intoxicated.’” Davis v. State, 13

       N.E.3d 500, 502-03 (Ind. Ct. App. 2014) (quoting Sesay v. State, 5 N.E.3d 478,

       481 (Ind. Ct. App. 2014), trans. denied) (emphasis added).


[11]   Here, the State charged Pulido with public intoxication under subsection (a)(1),

       alleging that Pulido had endangered his own life. Pulido contends that there


       Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019          Page 6 of 12
       was no evidence that he had endangered his life while walking on the sidewalk

       while in an intoxicated state. Pulido challenges the trial court’s conclusion that

       that State had shown that he had endangered his life based on the officer’s

       testimony that “Pulido ‘was staggering next to a city street[.]’” (Pulido’s Br. 5)

       (quoting Tr. 6). Pulido points out that there was no evidence that he had

       walked into the street or he had fallen or hurt himself. As he did at the bench

       trial, Pulido relies on Sesay and Davis to support his argument that there was

       insufficient evidence that he had endangered his life.


[12]   In Sesay and Davis, we reversed each defendant’s public intoxication conviction

       based on insufficient evidence that the defendant had endangered his life as

       required under subsection (a)(1) of public intoxication statute. In Sesay, the

       intoxicated defendant was standing three to five feet from the roadway near

       where his vehicle had gone into a drainage ditch. The officer dispatched to the

       scene testified that “he was alarmed for [the defendant’s] safety if he were to

       leave him alone.” Id. at 479. The officer “felt” that the defendant was “a

       danger to himself” based on the facts that he “could barely standup without

       assistance, . . . it was 3:00 a.m. so bars were closing, there was not a great deal

       of street lighting in the area, and [the defendant] was so close to the side of the

       road [that] he could have been hit by a car.” Id. (internal quotation marks

       omitted). The officer “did not see [the defendant] in the road at any point and

       there was no evidence [that] he [had] ever [been] in a position such that a car

       traveling lawfully on the road could have hit him where he stood.” Id. When

       reversing the defendant’s public intoxication conviction, we rejected the State’s


       Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019      Page 7 of 12
       argument that the defendant “could have fallen into the road or been hit by a

       car.” Id. at 485 (emphasis added). We explained that “it is the conduct of the

       intoxicated person that must cause the endangerment” and held that

       “speculation regarding things that could happen in the future is not sufficient to

       prove the present crime of public intoxication.” Id. (emphasis in original).


[13]   In Davis, the police arrived at the scene “[e]arly in the morning” and found the

       defendant in an apartment’s grassy common area. Davis, 13 N.E.3d at 501.

       This area was near a “busy” two-lane road that had “no sidewalks or shoulders

       abutting the roads” and that had poor lighting. Id. at 502. The defendant had

       slurred speech, bloodshot eyes, “smelled heavily of alcohol,” had stumbled

       when walking, and had to be propped up against a patrol car by the police. Id.

       At trial, the arresting officer testified that he “feared that if he allowed [the

       defendant] to walk away, [he] would be struck by a car.” Id. On appeal, the

       State argued that the defendant had endangered his life because he had been

       walking “near the road” and “was in danger of being struck by a car if he left

       the apartment complex.” Id. at 503, 504. Our Court reversed the defendant’s

       public intoxication conviction, explaining that the State’s argument that the

       defendant would be in danger of being struck by a car if had been allowed to

       keep walking was “merely speculative” and holding that the “State may not

       convict [a defendant] for what would or could have happened.” Id. at 504

       (emphasis added).


[14]   In response to Pulido’s sufficiency challenge, the State contends that Pulido

       “created a dangerous situation” by “his inability to maintain his balance as he
       Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019        Page 8 of 12
       walked adjacent to a roadway,” (State’s Br. 7), and that “Officer Lewis’s

       testimony about Pulido’s behavior is enough to sustain Pulido’s conviction.”

       (State’s Br. 5). The State asserts that “Pulido placed himself in a situation

       where each drunken step could have placed him on a city street, endangering his

       life.” (State’s Br. 5) (emphasis added). The State rationalizes Pulido’s

       conviction for public intoxication by suggesting that Officer Lewis brought

       Pulido to “safety” and “[p]rotect[ed] Pulido from this danger” of potentially

       wandering into the street by arresting him instead of “allow[ing] Pulido to

       continue aimlessly stumbling alongside the road[.]” (State’s Br. 7).


[15]   The public intoxication statute neither defines the term “endangers the person’s

       life” nor the general term of endangerment. Our Court, in Davis and Sesay,

       reviewed the language of the statute and various public intoxication cases in an

       effort to interpret the meaning. “Noting that the [public intoxication statute]

       uses the present tense ‘endangers’ and not the conditional tense ‘might

       endanger,’ we reasoned that ‘speculation regarding things that could happen in

       the future is not sufficient to prove the present crime of public

       intoxication.’” Davis, 13 N.E.3d at 503 (quoting Sesay, 5 N.E.3d at 485-86)

       (emphasis in original). We also recognized that the legislature had not included

       language suggesting future or conditional conduct in subsection (a)(1) of the

       public intoxication statute (“endangers the person’s life”) as it had included in

       subsection (a)(3) of the statute (“breaches the peace or is in imminent danger of

       breaching the peace”). See Sesay, 5 N.E.3d at 486. When synthesizing the

       various public intoxication cases, our Court noted:


       Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019      Page 9 of 12
                  The common thread in these cases is past or present conduct by the
                  defendant did or did not place life in danger. While the statute
                  does not require that actual harm or injury occur, some action by
                  the defendant constituting endangerment of the life of the
                  defendant . . . must be shown. This is true even where an officer
                  testifies that the defendant was a danger to himself or others. See,
                  e.g., Sesay, 5 N.E.3d at 479. Were it otherwise, citizens could be
                  convicted for possible, future conduct. The policy behind the
                  current public intoxication statute is to encourage intoxicated
                  persons to avoid danger by walking or catching a ride rather than
                  driving. Stephens, 992 N.E.2d at 938. Although we acknowledge
                  that intoxicated persons may also create danger by walking in
                  public places, that danger must have manifested itself in order for
                  the State to obtain a conviction.


       Davis, 13 N.E.3d at 503 (emphasis added).


[16]   Here, Officer Lewis testified that Pulido was staggering on the sidewalk next to

       a city street when she encountered him. Officer Lewis provided no testimony

       regarding the presence of traffic along that street at the time of their encounter.2

       The officer ordered Pulido to stop, and he complied with the order. Once

       Pulido stopped, the officer observed that he had slurred speech, red glassy eyes,

       and difficulty maintaining his balance. Additionally, Pulido told the officer that

       he did not know the answer to her questions about where he lived and where he

       was going.




       2
           Nor is there any evidence of the time of day that the officer encountered Pulido.


       Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019                   Page 10 of 12
[17]   It is undisputed that Pulido was intoxicated in a public place. The State,

       however, did not present any evidence of Pulido’s past or present conduct or

       action that endangered his life. See Davis, 13 N.E.3d at 503. We reject the

       State’s argument that the evidence was sufficient to support his conviction

       because Pulido’s act of being intoxicated while on the sidewalk “created a

       dangerous situation.” (State’s Br. 7). The statute required that the State prove

       that Pulido “endanger[ed] [his] life[.]” I.C. § 7.1-5-1-3(a)(1). We also reject the

       State’s suggestion that we should affirm Pulido’s public intoxication conviction

       based on Officer Lewis’ attempt to protect Pulido from any future, potential

       harm of walking in the street and getting struck by a car. The State’s argument

       is “merely speculative, not proof beyond a reasonable doubt.” See Davis, 13

       N.E.3d at 504. Indeed, as we have previously warned:


               If it is sufficient to speculate about all the various things
               that might befall a person, then, again, the legislature’s addition
               of endangerment as an element would be rendered superfluous
               because there is virtually no scenario in which a person in a
               public place would not be found guilty of public intoxication for
               simply being intoxicated. Such a construction would stretch the
               statute to an absurdity.


       Sesay, 5 N.E.3d at 486 (emphasis in original). Given the evidence presented

       during Pulido’s bench trial and the specific language of subsection (a)(1) of the

       public intoxication statute as set forth by our legislature, we conclude that the

       State failed to prove beyond a reasonable doubt that Pulido had endangered his

       own life. See, e.g., Davis, 13 N.E.3d at 503-04; Sesay, 5 N.E.3d at 486.

       Accordingly, we reverse his public intoxication conviction.

       Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019      Page 11 of 12
[18]   Reversed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-834 | September 12, 2019   Page 12 of 12
