                                                                      Nov 27 2013, 5:36 am
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
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.



ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JILL M. ACKLIN                                  GREGORY F. ZOELLER
Westfield, Indiana                              Attorney General of Indiana

                                                JODI KATHRYN STEIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

CLARENCE W. SEELEY, III,                        )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 21A01-1303-CR-139
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE FAYETTE SUPERIOR COURT
                        The Honorable Beth A. Butsch, Special Judge
                             Cause No. 21D01-1207-CM-617


                                    November 27, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                                    STATEMENT OF THE CASE

        Appellant-Defendant, Clarence W. Seeley III (Seeley), appeals his conviction for

public intoxication, a Class B misdemeanor, Ind. Code § 7.1-5-1-3.1

        We affirm.

                                                   ISSUE

        Seeley raises two issues on appeal, which we restate as:

        (1) Whether Seeley was incapable of committing the offense of public intoxication

            as a matter of law because his presence in a public place was not voluntary;

            and

        (2) Whether the State presented sufficient evidence beyond a reasonable doubt to

            support Seeley’s conviction for public intoxication.

                             FACTS AND PROCEDURAL HISTORY

        On the evening of June 19, 2012, Hayward Ford (Ford) was working at the Shell

gas station on 30th Street in Connersville, Indiana. Between 10:00 and 10:30 p.m., Seeley

entered the gas station and approached Ford. Seeley flicked Ford’s necklace, and Ford

instructed Seeley “not to put his hands on [him] because [Seeley] didn’t know [him].”

(Transcript p. 9). Seeley responded antagonistically and directed curses, racial epithets,

and threats at Ford.

1
  Indiana Code section 7.1-5-1-3 was substantively amended, effective July 1, 2012. The more lenient
standard now states that a person is guilty of public intoxication only if that person is intoxicated in public
and: “(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.”

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       Noting that Seeley’s eyes had a “glossy” look, Ford asked him to leave the store,

but Seeley refused. (Tr. p. 12). After escorting Seeley through the front door, Ford re-

entered the Shell station and retrieved the cordless phone. He walked back outside with

the phone to demonstrate to Seeley that he was in the process of calling the police.

Seeley responded by lunging at Ford and throwing an errant right-handed punch. Ford

struck Seeley once with his left fist, and Seeley fell to the ground unconscious. Ford then

re-entered the store, still on the phone with dispatch.

       Within minutes, Connersville Police Officer Chad Catey (Officer Catey) arrived.

When Catey reached the Shell station, Seeley was lying unconscious in the parking lot.

By the time Lieutenant Richard Wilcox (Lieutenant Wilcox) reached the scene a few

minutes later, Seeley was awake and behaving confrontationally. While Officer Catey

and Lietenant Wilcox attempted to calm Seeley, each noted the distinct odor of alcohol.

In addition to being able to smell the alcohol on Seeley from several feet away, Officer

Catey reported that his speech was slurred. Once the emergency medical personnel

arrived, Lieutenant Wilcox observed that Seeley was unsteady on his feet when he

walked to the ambulance. Both Officers had encountered Seeley before, and neither had

ever observed him behaving belligerently when he was sober.

       Seeley was taken to the hospital, where his combative behavior continued.

Lieutenant Wilcox observed that Seeley had bloodshot eyes, an unsteady balance, and

emanated the smell of alcohol. On July18, 2012, the State filed an Information charging

Seeley with public intoxication, a Class B misdemeanor, I.C. § 7.1-5-1-3. On March 6,

                                              3
2013, the trial court conducted a bench trial. At trial, Seeley claimed that his symptoms

were a result of having been knocked unconscious and argued that the State had failed to

prove his intoxication. At the close of the evidence, the trial court found Seeley guilty

and imposed a 120-day sentence.

       Seeley now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

                                       I. Matter of Law

       Seeley’s argument focuses on the language of Indiana Code section 35-41-2-1,

which states that “[a] person commits an offense only if he voluntarily engages in

conduct in violation of the statute defining the offense.” Seeley argues that once he was

knocked unconscious by Ford, he was not capable of being publicly intoxicated because

his presence in public was no longer voluntary. We note that Seeley has raised the issue

of voluntary presence for the first time on appeal. Thus, it is waived. Stewart v. State,

945 N.E.2d 1277, 1288 (Ind. Ct. App. 2011), trans. denied. At trial, Seeley argued only

that there was insufficient evidence of his intoxication.

       Waiver notwithstanding, this issue does not constitute a matter of law. A pure

question of law stands independent of the trial record. It does not require reference to

extrinsic evidence, inferences drawn from extrinsic evidence, or the consideration of

witness credibility. Cunningham v. State, 835 N.E.2d 1075, 1076 (Ind. Ct. App. 2005)

(finding the right to a jury trial is a question of law) (citing Bader v. Johnson, 732 N.E.2d

1212, 1216 (Ind. 2000)). Seeley’s argument that he was not voluntarily at the Shell

                                              4
station after having been knocked unconscious necessarily requires reference to extrinsic

evidence presented at trial.

                                 II. Sufficiency of the Evidence

       Next, Seeley contends that the State failed to present sufficient evidence beyond a

reasonable doubt to sustain his conviction for public intoxication.           In reviewing a

sufficiency of the evidence claim, this court does not reweigh the evidence or judge the

credibility of the witnesses. Perez v. State, 872 N.E.2d 208, 212-13 (Ind. Ct. App. 2007),

trans. denied. We will consider only the evidence most favorable to the judgment and

the reasonable inferences to be drawn therefrom and will affirm if the evidence and those

inferences constitute substantial evidence of probative value to support the judgment.

See id. at 213. Reversal is appropriate only when reasonable persons would not be able

to form inferences as to each material element of the offense. Id.

       To convict Seeley of public intoxication, a Class B misdemeanor, the State was

required to establish beyond a reasonable doubt that Seeley was “in a public place or a

place of public resort in a state of intoxication caused by [his] use of alcohol or a

controlled substance.” I.C. § 7.1-5-1-3. “Intoxicated” is defined by Indiana Code section

9-13-2-86 as “under the influence of . . . alcohol . . . so that there is an impaired condition

of thought and action and the loss of normal control of a person’s faculties.” Impairment

can be established by evidence of: (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 the breath; (5) unsteady balance; (6) failure of field sobriety tests; and (7)

                                              5
slurred speech. Vanderlinden v. State, 918 N.E.2d 642, 644 (Ind. Ct. App. 2009), trans.

denied. Belligerence is also an acknowledged sign of intoxication. See Wells v. State,

848 N.E.2d 1133, 1146 (Ind. Ct. App. 2006), trans. denied, cert. denied (2007).

      Seeley specifically contends that the intoxication element was not established

while he was voluntarily in a public place (i.e., before he was knocked unconscious by

Ford). Ford observed that Seeley’s eyes were “a little glossy” but also testified that he

did not know if Seeley was intoxicated.         (Tr. p. 12).   Seeley maintains that the

circumstantial evidence of his impairment (watery eyes, belligerence, and unsteady gait)

was actually the result of his being knocked unconscious, not of intoxication. We find

his argument unpersuasive.

      While there is no direct evidence that Seeley arrived at the Shell station in a state

of intoxication, the fact finder is “entitled to draw reasonable inferences from facts

established by the evidence.” Smith v. State, 547 N.E.2d 845, 846 (Ind. 1989). The

record demonstrates that Seeley voluntarily arrived at the Connersville Shell station

around 10:30 p.m. on June 19th. Ford noted Seeley’s “glossy” eyes and belligerent

behavior, both of which are signs of intoxication. Within minutes of Ford contacting the

police, two Officers arrived at the gas station. Both Officers had had prior experiences

with Seeley in an intoxicated state, and both observed signs of intoxication on the night

of June 19th: strong odor of alcohol, unsteady balance, and slurred speech. Both Officers

noted that Seeley’s behavior was consistent with the previous occasions on which they

had observed him in an intoxicated state, and both concluded that he was highly

                                            6
intoxicated. Furthermore, after Seeley had been taken to the hospital, Lieutenant Wilcox

continued to observe him behaving in a manner that suggested intoxication: “Seeley

continued to be belligerent, loud and screaming, yelling, calling everybody names . . . he

wanted [us] to let him go so that he could go back to the gas station where he voiced

comments that he was going to cause harm to . . . Ford.” (Tr. p. 26).

       Because the Officers arrived within minutes of Ford’s call and observed Seeley in

a state of intoxication, the trial court, as finder of fact, could reasonably infer that if

Seeley was intoxicated when the Officers arrived, he had likely been in a state of

intoxication a few minutes earlier when he had first entered the Shell station. Therefore,

we affirm the trial court’s conviction of Seeley.

                                      CONCLUSION

       Based on the foregoing, we conclude that the State presented sufficient evidence

to sustain Seeley’s conviction.

       Affirmed.

ROBB, C. J. and KIRSCH, J. concur




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