MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Jan 16 2019, 5:49 am

this Memorandum Decision shall not be                                       CLERK
regarded as precedent or cited before any                               Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
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
Matthew M. Kubacki                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Poge, Jr.,                                       January 16, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-758
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Carol Orbison,
Appellee-Plaintiff.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         49G19-1712-CM-46771



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-758 | January 16, 2019                 Page 1 of 10
                                             Case Summary
[1]   Michael Poge, Jr. appeals his conviction for public intoxication, a Class B

      misdemeanor. We affirm.


                                                     Issue
[2]   The sole issue on appeal is whether the State presented sufficient evidence to

      prove that Poge endangered himself.


                                                     Facts
[3]   In the early morning hours of December 2, 2017, a 911 caller reported a break-

      in at an apartment complex located near the 4200 block of Meadows Drive, “a

      busy street,” in Indianapolis. Tr. Vol. II p. 7. It was an extremely cold

      morning. Indianapolis Metropolitan Police Department Officer Tiffany Rand

      was dispatched to the scene. Outside one of the apartment buildings, Officer

      Rand encountered Poge “[s]taggering all over the place” near the street. Id. at

      8. A damaged fence surrounded the apartment building, which faced Meadows

      Drive.


[4]   Poge exhibited various signs of intoxication, including impaired and slurred

      speech, and he could not stand, maintain his balance, or walk without

      assistance. Poge was unable, for several minutes, to tell Officer Rand his name.

      Poge was also unable to provide his address or to identify a person who could

      come to the scene and take him home. Officer Rand placed Poge under arrest

      for his own safety because


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-758 | January 16, 2019   Page 2 of 10
              [Poge] had nowhere to go. He didn’t know his address. He
              couldn’t walk by himself. And like I said it was a cold night. So,
              I didn’t want him to get robbed, hit by a car, freeze to death.


      Id. at 10.


[5]   On December 4, 2017, the State charged Poge with public intoxication, a Class

      B misdemeanor. At Poge’s bench trial on March 9, 2018, Officer Rand testified

      to the foregoing facts. Also, the following colloquy ensued during direct

      examination of Officer Rand:


              Q     Do you know what specific events occurred that led to the
              911 call?


              [Defense Counsel]: Objection. Hearsay.


              [Prosecutor]: Your Honor, I’m not asking for any spoken words
              or anyone else’s words, I am asking for a ---


              THE COURT: She can – she can testify as to what the 911 call
              indicated as the reason that she was needed on that location.


              [Prosecutor]: Thank you.


              A     It was a female caller stating that a black male was trying
              to knock down her door.


              Q        And did you arrive at after that?


              A        Yes.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-758 | January 16, 2019   Page 3 of 10
                                                      *****


            Q       Officer Rand, when you first arrived on scene, where was
      [Poge], specifically?


               A        Standing outside the complainants [sic] building.


      Id. at 8, 9-10. 1


[6]   At the close of the evidence, the trial court found Poge guilty as charged. The

      trial court sentenced Poge to one hundred and eighty days in the Department of

      Correction and ordered the term suspended to probation, except for time

      served. Poge now appeals.


                                                     Analysis
[7]   Poge challenges the sufficiency of the evidence to establish his conviction for

      public intoxication, a Class B misdemeanor. Specifically, Poge argues that the

      State merely speculated as to future conduct that might occur and, thereby,

      failed to present evidence that Poge “engaged in any conduct that endangered

      his life beyond his intoxication.” Appellant’s Br. p. 6.


[8]   When there is a challenge to the sufficiency of the evidence, “[w]e neither

      reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204,

      210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert.




      1
        There is no evidence in the record that Poge was identified as the black male who attempted to break into
      the 911 caller’s apartment.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-758 | January 16, 2019                  Page 4 of 10
      denied). Instead, “we ‘consider only that evidence most favorable to the

      judgment together with all reasonable inferences drawn therefrom.’” Id.

      (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is

      supported by ‘substantial evidence of probative value even if there is some

      conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also

      McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though

      there was conflicting evidence, it was “beside the point” because that argument

      “misapprehend[s] our limited role as a reviewing court”). Further, “[w]e will

      affirm the conviction unless no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696

      (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).


[9]   To prove that a defendant has committed public intoxication, the State must

      establish the following:


              (a) . . . [I]t 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.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-758 | January 16, 2019   Page 5 of 10
       Ind. Code § 7.1-5-1-3. The State charged Poge under subsection Indiana Code

       Section 7.1-5-1-3(a)(1). Poge argues the State presented no evidence that he

       endangered his life.


[10]   We addressed a similar argument in Williams v. State, 989 N.E.2d 366 (Ind. Ct.

       App. 2013). As Williams left a bar with a group of friends, a member of the

       group was struck by a car. The injured person was incapacitated on the street,

       and a crowd gathered around her. When responding police officers attempted

       to clear the street for emergency vehicles, Williams refused to comply. The

       officers observed a strong odor of alcohol about Williams’ person. Williams

       had glassy and bloodshot eyes, his speech was slurred, and his balance was

       unsteady. Williams became belligerent and aggressive with the officers; and, as

       they escorted him from the street, Williams jerked his left arm away from an

       officer and shoved a second officer’s hand off Williams’ right arm. In affirming

       Williams’ conviction and finding sufficient evidence that he endangered himself

       or the lives of others, a panel of this court cited the officers’ testimony that they

       “believed that Williams was ‘an intoxicated person who was a danger to

       himself.’” Williams, 989 N.E.2d at 370-71.


[11]   Poge cites our holding in Sesay v. State, 5 N.E.3d 478 (Ind. Ct. App. 2014), trans.

       denied, in support of his claim that the State’s evidence of endangerment was

       speculative. In Sesay, a police officer observed Sesay standing on the passenger




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-758 | January 16, 2019   Page 6 of 10
       side of a vehicle that was stuck in a drainage ditch. 2 Sesay was approximately

       three to five feet off the roadway and did not pose a threat to passing or

       approaching motorists. Sesay smelled of alcohol, had glassy and bloodshot

       eyes, and had vomited on himself. Believing Sesay to be highly intoxicated, the

       officer arrested Sesay for public intoxication because, in the officer’s view,

       Sesay could not stand without assistance, the surrounding area was dark, and

       Sesay could be struck by a car. Sesay was charged with, and subsequently

       convicted of, public intoxication, a Class B misdemeanor.


[12]   On appeal, Sesay argued that the State failed to prove that he endangered his

       life. We reversed, reasoning, in part, that:


                  . . . it is the conduct of the intoxicated person that must cause
                  the endangerment. One of the State’s justifications for the
                  conviction here is that Sesay could have been hit by a car as he
                  stood several feet from the side of the road. But even a sober
                  person standing alongside the road could be hit by a passing car if
                  the driver of that car was driving erratically or failing to pay
                  attention. When Officer Jones came upon Sesay, he was
                  standing near the road alongside a stopped car. Officer Jones
                  testified that Sesay had not and did not try to walk away from the
                  scene but that he did not think Sesay would have been able to
                  walk away because he could barely stand up without assistance.
                  Nonetheless, Officer Jones did not see Sesay in the roadway, nor
                  did he see him fall—or nearly fall, for that matter; he was just
                  afraid that he might. There is nothing to indicate that Sesay’s
                  intoxication made it more likely that he would be hit by a car,




       2
           The vehicle had been involved in an accident. Sesay was not the driver.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-758 | January 16, 2019   Page 7 of 10
               and it is his conduct and not the conduct of a passing motorist
               that is the relevant consideration.


               Finally, speculation regarding things that could happen in the
               future is not sufficient to prove the present crime of public
               intoxication. This is not an attempt crime where the person can
               take a substantial step toward committing public intoxication by
               being intoxicated. Moreover, the statute says a person commits
               public intoxication if he is in a public place in a state of
               intoxication and if the person “endangers” his life, not if he
               endangers or might endanger his life. Compare Ind. Code § 7.1-5-
               1-3(a)(1) with Ind. Code § 7.1-5-1-3(a)(3) (stating a person
               commits public intoxication if he is in a public place in a state of
               intoxication if he “breaches the peace or is in imminent danger of
               breaching the peace”). 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.


       Id. at 485 (internal citations and footnotes omitted) (italics emphasis in
       original, bold emphasis added).


[13]   In the instant case, Officer Rand testified that Poge was staggering drunk

       outside on a bitterly cold December night. Poge could not recall his address;

       nor could Poge identify anyone who could drive him home. Officer Rand

       testified that she arrested Poge “for his own safety” because she “didn’t want

       him to . . . freeze to death.” App. Vol. II p. 12.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-758 | January 16, 2019   Page 8 of 10
[14]   Although we can understand Poge’s reliance on Sesay, his reliance is misplaced.

       As the Sesay panel cautioned, “it is the conduct of the intoxicated person that

       must cause the endangerment.” Sesay, 5 N.E.3d at 485. In Sesay, the police

       officer arrested Sesay for public intoxication endangering himself because Sesay

       could be struck by a car. In reversing Sesay’s conviction, we reasoned that

       nothing about Sesay’s conduct posed a threat of harm to him, when police

       encountered him standing a safe distance from the roadway, awaiting a ride.

       See id. (“There is nothing to indicate that Sesay’s intoxication made it more

       likely that he would be hit by a car, and it is his conduct and not the conduct of

       a passing motorist that is the relevant consideration.”).


[15]   In the instant case, which is more akin to Williams, Poge’s “conduct” that

       caused the endangerment was his inability to recognize that the weather

       conditions posed real danger. Poge could not provide his address or identify a

       person who could pick him up and demonstrated his inability to care for

       himself. Without Poge’s address or the identity of a person who could attend to

       him, Officer Rand had no options to protect Poge from the danger that the

       bitter cold and his intoxication created.


[16]   Inasmuch as Poge’s intoxication overrode his instinct to urgently seek shelter

       from the bitter cold, the extreme cold did not pose a merely speculative threat.

       Thus, Officer Rand believed that Poge was “an intoxicated person who was a

       danger to himself.” See Williams, 989 N.E.2d at 370-71. To the extent that

       Poge asserts that Sesay warrants a different conclusion here, we must disagree.

       Because a reasonable fact-finder could find the elements of the crime proven

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-758 | January 16, 2019   Page 9 of 10
       beyond a reasonable doubt, we conclude that the State presented sufficient

       evidence to convict Poge. See Love, 73 N.E.3d at 696.


                                                 Conclusion

[17]   The State presented sufficient evidence to support Poge’s conviction. We

       affirm.


[18]   Affirmed.


[19]   Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-758 | January 16, 2019   Page 10 of 10
