Court of Appeals of Indiana | Memorandum Decision 18A-CR-758 | January 16, 2019 Page 1 of 10

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.

ATTORNEY FOR APPELLANT

Matthew M. Kubacki

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

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 Case No.

18A-CR-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-CR-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 of December 2, 2017, a 911 caller reported a breakin 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 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. 

[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.
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* * * * *

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.
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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.
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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 
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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.
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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. 
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[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 
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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.