                                                                            Oct 08 2013, 5:24 am

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
                                             CHANDRA K. HEIN
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

DAVID HOLBERT,                               )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )       No. 49A05-1302-CR-54
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Rebekah Pierson-Treacy, Judge
                           Cause No. 49F19-1208-CM-53727



                                   October 8, 2013


                             OPINION - FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      David Holbert appeals his convictions for possession of marijuana, as a Class A

misdemeanor, and public intoxication, as a Class B misdemeanor, following a bench trial.

Holbert raises the following two issues for our review:

      1.     Whether the State violated Holbert’s rights under the Fourth
             Amendment to the United States Constitution or Article I, Section 11
             of the Indiana Constitution when it stopped him and searched his
             person; and

      2.     Whether the State presented sufficient evidence to support his
             conviction for public intoxication.

      We affirm in part and reverse and remand in part.

                      FACTS AND PROCEDURAL HISTORY

      In the evening hours of August 4, 2012, Melissa Allen, a resident of Speedway,

observed an unknown man twice cross her yard and enter her neighbor’s backyard. Allen

then observed the man enter her neighbor’s garage.        She called 9-1-1 to report a

suspected burglary, and she described the man as an African-American male who was

“wearing a yellow and blue jersey, dark colored pants[, and] with salt and pepper hair.”

Transcript at 14. She reported to dispatch that the man was proceeding south along the

public sidewalk on Tenth Street.

      Officers Christopher Helmer and John Hammel of the Speedway Police

Department promptly responded.       They observed a man, Holbert, matching Allen’s

description of the suspect walking south along Tenth Street. The officers activated their

vehicle’s emergency lights and stopped Holbert. Allen, who had remained on the phone




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with dispatch, observed the officers stop the same man who had prompted her to call 9-1-

1.

       Upon stopping Holbert, the officers immediately placed him in handcuffs and

patted him down for officer safety. The officers discovered a baggie of marijuana and a

can of beer on Holbert’s person in the course of the pat down. After they had placed

Holbert in handcuffs, the officers observed that Holbert’s eyes were glassy and

bloodshot, he smelled of alcohol, he swayed while walking and standing, and his speech

was “slow and slurred.” Id. at 66. The officers then brought Allen to Holbert’s location,

and she identified him as the man she had observed entering her neighbor’s garage.

       On August 6, the State charged Holbert with possession of marijuana, as a Class A

misdemeanor, and public intoxication, as a Class B misdemeanor. During the ensuing

bench trial, Holbert objected to the admission of the marijuana and evidence of his

intoxication, which the trial court denied. The court found him guilty as charged and

sentenced him accordingly. This appeal ensued.

                             DISCUSSION AND DECISION

                            Issue One: Admission of Evidence

       On appeal, Holbert first argues that the trial court abused its discretion when it

admitted the evidence that was either seized or observed during the police stop. Our

standard of review of a trial court’s admission or exclusion of evidence is an abuse of

discretion. Speybroeck v. State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007). A trial court

abuses its discretion only if its decision is clearly against the logic and effect of the facts

and circumstances before the court. Id. In reviewing the admissibility of evidence, we


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consider only the evidence in favor of the trial court’s ruling and any unrefuted evidence

in the defendant’s favor. Dawson v. State, 786 N.E.2d 742, 745 (Ind. Ct. App. 2003),

trans. denied.

       Holbert contends that the State’s seizure of his person was unreasonable under the

Fourth Amendment to the United States Constitution and Article I, Section 11 of the

Indiana Constitution.    Both of those constitutional provisions protect citizens from

unreasonable searches and seizures. See Hathaway v. State, 906 N.E.2d 941, 944-45

(Ind. Ct. App. 2009), trans. denied. Generally, a search warrant is a prerequisite to a

constitutionally proper search and seizure. Halsema v. State, 823 N.E.2d 668, 676 (Ind.

2005). When a search or seizure is conducted without a warrant, the State bears the

burden of proving that an exception to the warrant requirement existed at the time of the

search or seizure. Id.

       However, in Terry v. Ohio, 392 U.S. 1, 30 (1968), the United States Supreme

Court held that an officer may, consistent with the Fourth Amendment, conduct a brief

investigatory stop when, based on a totality of the circumstances, the officer has a

reasonable, articulable suspicion that criminal activity is afoot. Hardister v. State, 849

N.E.2d 563, 570 (Ind. 2006).        An investigatory stop allows a police officer to

“temporarily freeze the situation in order to make an investigative inquiry.” Johnson v.

State, 766 N.E.2d 426, 429 (Ind. Ct. App. 2002), trans. denied. A Terry stop is a lesser

intrusion on the person than an arrest and may include a request to see identification and

inquiry necessary to confirm or dispel the officer’s suspicions. Id. (citing Hiibel v. Sixth

Judicial Dist. Court of Nev., 542 U.S. 177, 185-89 (2004)). Reasonable suspicion entails


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some minimal level of objective justification for making a stop, something more than an

unparticularized suspicion or hunch, but less than the level of suspicion required for

probable cause. Wilson v. State, 670 N.E.2d 27, 29 (Ind. Ct. App. 1996) (citing United

States v. Sokolow, 490 U.S. 1, 7 (1989)). Indiana has adopted the Terry rationale in

determining the legality of an investigatory stop under Article I, Section 11. Id.

       Here, Holbert acknowledges that officers had reasonable suspicion to initiate a

Terry stop but contends that that suspicion did not justify placing him in handcuffs. See

Appellant’s Br. at 6.     Holbert also asserts that the officers did not have proper

justification to pat him down and that the officers could not have recognized the

marijuana on his person through the plain feel doctrine. We cannot agree with any of

these arguments.

       It is beyond dispute that “an officer who stops a suspect on reasonable suspicion of

[an inherently dangerous] offense may conduct a protective search.” N.W. v. State, 834

N.E.2d 159, 165 (Ind. Ct. App. 2005) (quotation and alteration omitted), trans. denied.

This right of the officer is “automatic whenever the suspect has been stopped upon the

suspicion that he has committed, was committing, or was about to commit a type of crime

for which the offender would likely be armed.” Id. It is equally well established that

burglary is one such type of crime. Id. at 165-66.

       There is no question that the officers stopped Holbert based on a reasonable

suspicion that he had committed a burglary.          Accordingly, their right to conduct a

protective search by briefly placing him in handcuffs and frisking him was automatic.

Further, in the course of executing this protective search the officers found marijuana on


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Holbert’s person, which they testified they immediately recognized, based on their

experience and training, to be marijuana based on its feel. See Minnesota v. Dickerson,

508 U.S. 366, 375 (1993). Thus, the officers properly stopped, frisked, observed, and

seized the marijuana from Holbert, and the trial court did not abuse its discretion under

either the federal or state constitution in the admission of this evidence.

                      Issue Two: Evidence of Public Intoxication

       Holbert also argues that the State failed to present sufficient evidence to support

his conviction for public intoxication, as a Class B misdemeanor. When reviewing a

claim of sufficiency of the evidence, we do not reweigh the evidence or judge the

credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look

only to the probative evidence supporting the judgment and the reasonable inferences that

may be drawn from that evidence to determine whether a reasonable trier of fact could

conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial

evidence of probative value to support the conviction, it will not be set aside. Id.

       Historically, to prove public intoxication, as a Class B misdemeanor, it was

enough for the State to show that the defendant was intoxicated while in a public place.

See Moore v. State, 949 N.E.2d 343, 344 (Ind. 2011). In Moore, the defendant consumed

two beers at her sister’s house and called a friend to drive her home. En route, an officer

pulled the friend’s car over on a public street for a nonfunctioning license plate light, and

the officer cited the defendant for public intoxication. The defendant was subsequently

convicted. This court reversed her conviction, but our supreme court affirmed it.




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       As a result of our supreme court’s decision in Moore, the General Assembly

amended Indiana Code Section 7.1-5-1-3, effective July 1, 2012, to now state:

       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:

       (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.

Ind. Code § 7.1-5-1-3(a). The General Assembly’s addition of the four listed criteria

“promotes public policy 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.” Stephens v. State, ___ N.E.2d ___, No. 49A04-1301-CR-18,

slip op. at 2 (Ind. Ct. App. Aug. 15, 2013). Thus, the amended statute reflects this court’s

pre-Moore decisions that the “‘[t]he spirit of the public intoxication statute is to prevent

people from becoming inebriated and then bothering and/or threatening the safety of

other people in public places.’” Jones v. State, 881 N.E.2d 1095, 1098 (Ind. Ct. App.

2008) (quoting Wright v. State, 772 N.E.2d 449, 456 (Ind. Ct. App. 2002)).

       Holbert argues that the State failed to meet its burden under the amended statute

because, while he was plainly intoxicated in a public place, there is no evidence that he

met any of the four enumerated criteria while in a public place. The State responds that

Holbert’s behavior alarmed Allen when he walked across her yard and that she continued

to be alarmed when she observed Holbert walking on the sidewalk. Thus, the State

contends that it does not matter whether Holbert’s behavior in Allen’s yard, the behavior



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that initially alarmed her, did not occur in a public place because she remained alarmed

after Holbert had entered onto the sidewalk.

        This is a question of first impression in our interpretation of the amended statute.

“When a statute has not previously been construed, our interpretation is controlled by the

express language of the statute and the rules of statutory construction.” State v. Prater,

922 N.E.2d 746, 748 (Ind. Ct. App. 2010), trans. denied. “We review the statute as a

whole and presume the legislature intended logical application of the language used in

the statute, so as to avoid unjust or absurd results.” Id. In other words, “we are obliged

to suppose that the General Assembly chose the language it did for a reason.” Id. at 750.

        Because the amended statute is relatively new, “we have little precedent

concerning the new language.” Stephens, ___ N.E.2d ___, slip op. at 2. In Stephens, the

defendant was intoxicated but in his private residence when he engaged another man in

an altercation. The defendant left his residence and called the police from a public

parking lot. The police arrived and arrested him. The State charged him with public

intoxication and the trial court convicted him of that charge, but we reversed his

conviction on appeal, stating:

        The mere fact that he was intoxicated in a public parking lot did not amount
        to a violation of the public intoxication statute. He did not breach the
        peace, and to the extent the trial court reasoned that he was in “imminent
        danger of breaching the peace” if he returned home, we find such a
        conclusion to be speculative.

Id. at 3.

        We also considered the amended statute in Williams v. State, 989 N.E.2d 366 (Ind.

Ct. App. 2013). In that case, the defendant, while intoxicated, “refused to move off of the


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street and to the sidewalk although commanded by the police multiple times to do so”;

“was belligerent with the officers”; “did not move out of the street until the officers

physically escorted him off of the street”; “was staggering as the officers escorted him to

the sidewalk”; and “jerked his arm away from [one officer] and shoved [another’s] hand

away . . . .” Id. at 370-71. We affirmed his conviction for public intoxication, as a Class

B misdemeanor. Id. at 371.

       Holbert’s case is closer to Stephens than to Williams. The behavior that alarmed

Allen occurred while Holbert was on private property, not public property. And because

the officers did not notice that Holbert was intoxicated until after they had stopped him

and placed him in handcuffs, the State does not suggest that Holbert had placed himself

in danger by walking down a public sidewalk, adjacent to a public roadway, while

intoxicated. Thus, there is no evidence that Holbert engaged in any of the four listed

criteria while he was in a public place.

       This conclusion is supported by the text of the statute. Again, the statute provides

that it is a Class B misdemeanor “to be in a public place . . . in a state of

intoxication . . . if” the person is engaging in one of the four listed criteria. I.C. § 7.1-5-1-

3(a). That is, the plain language of the statute conditions the entirety of the phrase “to be

in a public place . . . in a state of intoxication” on the occurrence of one of the four listed

criteria. This reading is also consistent with this court’s recognition that “‘[t]he spirit of

the public intoxication statute is to prevent people from becoming inebriated and then

bothering and/or threatening the safety of other people in public places.’” Jones, 881

N.E.2d at 1098 (emphasis added) (quoting Wright, 772 N.E.2d at 456). Thus, the public


                                               9
intoxication statute requires that the prohibited behavior have occurred while the

defendant was in a public place.

       Moreover, “in interpreting a statute, we must consider not only what the statute

says but what it does not say.” Curley v. Lake Cnty. Bd. of Elections & Registration, 896

N.E.2d 24, 34 (Ind. Ct. App. 2008), trans. denied. The amended statute does not say, as

the State’s argument suggests, that it is a Class B misdemeanor to be in a public place in

a state of intoxication whenever one’s intoxication resulted in one of the four listed

criteria. There is no question that Holbert’s behavior alarmed Allen, but there is also no

question that his alarming behavior did not occur in a public place. Accordingly, we

agree with Holbert that the State failed to present any evidence that he committed any of

the four criteria listed in the public intoxication statute while in a public place and, as

such, we must reverse his conviction for public intoxication, as a Class B misdemeanor.

We remand with instructions that the trial court vacate Holbert’s public intoxication

conviction.

       Affirmed in part and reversed and remanded in part.

MATHIAS, J., and BROWN, J., concur.




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