MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                                Jul 13 2016, 9:31 am
this Memorandum Decision shall not be
                                                                          CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. Burns                                         Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kelvin Ezell,                                            July 13, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1512-CR-2046
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable David Certo, Judge
Appellee-Plaintiff                                       The Honorable David Hooper,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G12-1509-CM-33536



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2046 | July 13, 2016          Page 1 of 7
                                          Case Summary
[1]   Kelvin Ezell (“Ezell”) appeals his conviction for Public Intoxication,1 a Class B

      misdemeanor. Ezell challenges the sufficiency of the evidence proving the

      intoxication and endangerment elements of the charge. We affirm.



                                   Facts and Procedural History
[2]   On September 18, 2015, Ezell was walking westbound on the shoulder of 30th

      Street toward Post Road in Indianapolis. (Tr. at 10) Responding to a dispatch,

      Officer Jay Akers (“Officer Akers”) pulled behind Ezell without Ezell’s

      awareness. (Tr. at 12) After getting Ezell’s attention, Officer Akers noted that

      Ezell had red, glassy eyes; lacked balance; smelled of alcohol; and slurred his

      speech. (Tr. at 10)


[3]   Believing Ezell was intoxicated, Officer Akers asked Ezell if he had anyone to

      call that could drive him home, but Ezell was unable to reach anyone. (Tr. at

      11) Ezell stated he was walking to 86th Street and Michigan Road, nearly

      twenty miles away. (Tr. at 11) Ezell also told Officer Akers that he was drunk.

      (Tr. at 15) Due to Ezell’s apparent intoxication, his lack of balance, and his

      proximity to a well-trafficked street, Officer Akers arrested Ezell. Officer Akers

      did not have Ezell perform any field sobriety tests, portable breath test, or blood




      1
          Ind. Code § 7.1-5-1-3.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2046 | July 13, 2016   Page 2 of 7
      test. (Tr. at 14) The State later charged Ezell with Public Intoxication as a

      Class B misdemeanor.


[4]   On November 4, 2015, a bench trial was conducted. For the State, Officer

      Akers testified to his version of events, summarized above. Both Ezell and his

      wife, Delisa Alvies (“Alvies”), provided the same alternative explanation to

      Ezell’s apparent lack of balance. According to their testimony, Ezell

      consistently limps because he needs hip surgery. (Tr. at 24, 31) Furthermore,

      they both testified that Ezell was walking to a nearby gas station on the corner

      of 30th Street and Mithoefer Road to meet Alvies so she could drive him home.

      (Tr. at 24, 29) Also, Ezell stated he never drinks alcohol and never told Officer

      Akers that he was drunk. (Tr. at 29, 30) In rebuttal, Officer Akers testified that

      Ezell was walking away from the gas station where he was supposed to meet

      Alvies. (Tr. at 36)


[5]   The trial court convicted Ezell of Public Intoxication as a Class B misdemeanor

      and sentenced him to 180 days, all suspended, 40 hours of community service,

      and a fine. This appeal followed.



                                 Discussion and Decision
[6]   The Indiana Code provides that:


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



      Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2046 | July 13, 2016   Page 3 of 7
              (1) endangers the person’s life;


              (2) endangers the life of another;


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


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


      Ind. Code § 7.1-5-1-3(a). In its charging information, the State alleged that

      Ezell was “found at 30th St / Post Rd, a public place or place of public resort, in

      a state of intoxication caused by the person’s use of alcohol or a controlled

      substance” and that Ezell endangered his life. (App. at 14)


[7]   On appeal, Ezell challenges the sufficiency of the evidence to prove the

      intoxication and endangerment elements. When reviewing the sufficiency of

      evidence, we look to the evidence most favorable to the judgment. Bailey v.

      State, 907 N.E.2d 1003, 1005 (Ind. 2009). We neither reweigh evidence nor

      judge the credibility of witnesses. Id. We will affirm the conviction if there is

      substantial evidence such that a trier of fact could have concluded that the

      defendant was guilty beyond a reasonable doubt. Id.


[8]   To prove intoxication, the State may provide evidence that shows: “(1) the

      consumption of a significant amount of alcohol; (2) impaired attention and

      reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on breath; (5)

      unsteady balance; (6) failure of field sobriety tests; and (7) slurred speech.”

      Williams v. State, 989 N.E.2d 366, 369 (Ind. 2013) (quoting Vanderlinden v. State,


      Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2046 | July 13, 2016   Page 4 of 7
       918 N.E.2d 642, 644 (Ind. Ct. App 2009), trans. denied). “It does not require

       proof of a Blood Alcohol Content (“BAC”) level.” Ballinger v. State, 717 N.E.2d

       939, 943 (Ind. Ct. App. 1999). Officer Akers testified that Ezell lacked balance

       as he walked and failed to notice the officer as he approached Ezell. Ezell also

       had red and glassy eyes, smelled of alcohol, and slurred his speech. Even

       without Ezell’s own admission of intoxication to Officer Akers, a reasonable

       finder of fact could determine that Ezell was intoxicated.


[9]    The endangerment element is a recent addition to the public intoxication

       statute. Whereas the former version of this statute simply required proof that

       the defendant was intoxicated in a public place, the legislature amended the law

       to require “[s]omething more than mere intoxication . . . to prove a person has

       committed the crime of public intoxication.” Sesay v. State, 5 N.E.3d 478, 485

       (Ind. Ct App. 2014), trans. denied. This change was implemented to encourage

       intoxicated people to avoid dangerous situations by walking, riding with a

       designated driver, or hailing a cab. See, e.g., Davis v. State, 13 N.E.3d 500, 503

       (Ind. Ct. App. 2014); Stephens v. State, 992 N.E.2d 935, 938 (Ind. Ct. App.

       2013), trans. denied.


[10]   Under this statute, speculation about events that could happen in the future is

       not sufficient to prove public intoxication. Sesay, 5 N.E.3d at 485. The

       question then becomes one of when speculative endangerment becomes actual

       endangerment. Using the amended language, this Court has reversed a number

       of convictions in which endangerment was speculative rather than actual:

       where a person was tripping over his feet but had not yet reached the road,

       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2046 | July 13, 2016   Page 5 of 7
       Davis, 13 N.E.3d at 501-502; where an intoxicated person was standing three to

       five feet from the road after an accident, Sesay, 5 N.E.3d at 479; and where an

       intoxicated person sitting at a gas station called the police to avoid going back

       home, where he was being abused, Stephens, 992 N.E.2d at 937. On the other

       side of the spectrum, we have affirmed convictions where a person had a loaded

       bow in an area with children, Hinton v. State, — N.E.3d —, 2016 WL 771336,

       *3 (Ind. Ct. App. 2016); and where a person could not stand up on his own in a

       public street and had no awareness of his surroundings, Labarr v. State, 36

       N.E.3d 501, 503 (Ind. Ct. App. 2015).


[11]   The evidence most favorable to the judgment suggests that Ezell intended to

       walk a great distance while intoxicated. He was on the shoulder of the road,

       where, Officer Akers attested, there was a good amount of traffic. There was

       no sidewalk upon which Ezell could walk. His balance was unstable. Also,

       Ezell was unaware that Officer Akers had pulled up behind him. Given these

       facts, a reasonable finder of fact could find that Ezell endangered himself by

       walking alongside the road where he was found.


[12]   To the extent Ezell claims he was not intoxicated nor in danger, he invites us to

       reweigh the evidence and judge the credibility of the witnesses. This is a task

       we will not do. As such, we find sufficient evidence supporting Ezell’s

       conviction.


[13]   Affirmed.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2046 | July 13, 2016   Page 6 of 7
Bradford, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2046 | July 13, 2016   Page 7 of 7
