Court of Appeals of Indiana | Memorandum Decision 18A

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### MEMORANDUM DECISION 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.

A TTORNEY FOR A PPELLANT Matthew M. Kubacki Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA
Michael Poge, Jr. , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. January 16, 2019 Court of Appeals Ca se No. 18A

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- 758 Appeal from the Marion Superior Court The Honorable Carol Orbison, Senior Judge Trial Court Cause No. 49G19

- 1712

- CM

- 46771

Tavitas , Judge .Court of Appeals of Indiana | Memorandum Decision 18A

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- 758 | January 16, 2019 Page 2 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 o f 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 Office r 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 O fficer 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 a rrest for h is own safety becauseCourt of Appeals of Indiana | Memorandum Decision 18A

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- 758 | January 16, 2019 Page 3 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

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[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 R and: 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

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THE COURT: She can

– she ca n 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 wa s trying to knock down her door.
Q And did you arrive at after that?

A Yes.Court of Appeals of Indiana | Memorandum Decision 18A

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- 758 | January 16, 2019 Page 4 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

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[6] At the close of the evidence, t he 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 int oxication.” 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

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- 758 | January 16, 2019 Page 5 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.” L ove 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 im minent danger of breaching the peace; or (4) harasses, annoys, or alarms another person.Court of Appeals of Indiana | Memorandum Decision 18A

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- 758 | January 16, 2019 Page 6 of 10 Ind. Code § 7.1

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- 3. The State charged Poge under subsection Indiana Code Section 7.1

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- 3(a)(1). Poge argues the State presented no evidence that he endangered hi s life.

[10] We addressed a similar argument in Williams v. State, 989 N.E.2d 366 (Ind. Ct. App. 2013)

. A s 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 g athered 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 William s’ person. Williams had glassy and blood shot eyes, his spee ch 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

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[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 passengerCourt of Appeals of Indiana | Memorandum Decision 18A

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- 758 | January 16, 2019 Page 7 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 al cohol, had glassy and blo odshot 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 w as dark , and Sesay could be struck by a car. Sesay was charged with, and subsequently convicted of , public intoxication, a Class B misdemeanor

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[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. Bu t 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. Offi cer 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 r oadway, 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

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- 758 | January 16, 2019 Page 8 of 10 and it is his conduct and not the conduct of a pa ssing 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 substan tial 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 mig ht endanger his life. Compare Ind. Code § 7.1

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- 3(a)(1) with Ind. Code § 7.1

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- 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 pe rson 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 ;
no r 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

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- 758 | January 16, 2019 Page 9 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 th at 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 h it 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. Withou t 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 shel ter from the bitter cold, the extreme cold did not pose a merely speculative threat

. Thus , Officer Rand believed that Poge was “ an intoxicated pers on 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 d ifferent conclusion here, we must disagree. Because a reasonable fact

- finder could find the elements of the crime provenCourt of Appeals of Indiana | Memorandum Decision 18A

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- 758 | January 16, 2019 Page 10 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.


### Co nclusion

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

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[18] Affirmed

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