Pulido v. State, No. 19A-CR-834, __ N.E.3d __ (Ind. Ct. App., Sept. 12, 2019).

Pyle, J.

Danish Pulido (“Pulido”) appeals his conviction, following a bench trial, for Class B misdemeanor public intoxication. Pulido argues that there was insufficient evidence to support his conviction, specifically challenging the endangerment element. Concluding that the State failed to prove beyond a reasonable doubt that Pulido endangered his own life as required by the public intoxication statute, we reverse his conviction.

On March 10, 2018, Indianapolis Metropolitan Police Department Officer Danielle Lewis (“Officer Lewis”) responded to a dispatch from an anonymous 9-1-1 caller who had reported that a “male subject was staggering . . . on[] the sidewalk” and was “walking adjacent to the city street.” The officer went to an intersection near “West 30th Street and Muslim Drive” and noticed a man, later identified as Pulido, who “was staggering[.]” The officer yelled for Pulido to stop, and he did. At that point, Pulido had “a hard time maintaining a balance while standing straight[,] . . . was kind of swaying while standing[, and] had to keep using his arms to regain his balance.” Officer Lewis “also noticed that he had red glassy eyes, and slurred speech.” She “believed” that Pulido was “heavily intoxicated.” The officer asked Pulido “if he was okay, . . . where he was headed to[], [and] where he lived[,]” and Pulido “told [her] that he did not know any of those things.” Officer Lewis “was worried about his welfare” and asked Pulido if “there was somebody that [she] could call to come pick him up[.]”Pulido “said he did not because he was quote ‘so drunk right now[.]’” Officer Lewis then arrested Pulido.

The State charged Pulido with Class B misdemeanor public intoxication. The charging information alleged, in relevant part, that Pulido had “endangered his life” under INDIANA CODE § 7.1-5-1-3(a)(1). …

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Pulido’s counsel cited to Sesay v. State, 5 N.E.3d 478 (Ind. Ct. App. 2014) and Davis v. State, 13 N.E.3d 500 (Ind. Ct. App. 2014) and argued that the State had failed to prove the endangerment element because there was no evidence that Pulido had “actually endangered himself.” Pulido’s counsel pointed out that “there was no evidence that [Pulido] . . . was ever in any danger of being hit by a vehicle or of hurting himself in any way.” He also argued that the evidence, which showed merely that Pulido was staggering on a sidewalk, was “not enough . . . to prove endangerment.”

The trial court found Pulido guilty as charged. When entering its verdict, the trial court specifically addressed Pulido’s argument regarding the evidence of the endangerment as follows: “The officer testified the young man [Pulido] was staggering next to a city street, Court finds that satisfies the obligation of proving endangerment.”

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In 2012, our legislature amended the public intoxication statute, INDIANA CODE § 7.1-5-1-3, “to add the four conduct elements to the definition of public intoxication so that it is no longer a crime to simply be intoxicated in public.” Milam v. State, 14 N.E.3d 879, 881 (Ind. Ct. App. 2014). See also Stephens v. State, 992 N.E.2d 935, 938 (Ind. Ct. App. 2013). The amended public intoxication statute in effect at the time of Pulido’s crime, provided, in relevant part, as follows:

. . . it is a Class B misdemeanor for a person to be in a public place . . . 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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Here, the State charged Pulido with public intoxication under subsection (a)(1), alleging that Pulido had endangered his own life. Pulido contends that there was no evidence that he had endangered his life while walking on the sidewalk while in an intoxicated state. …

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In response to Pulido’s sufficiency challenge, the State contends that Pulido “created a dangerous situation” by “his inability to maintain his balance as he walked adjacent to a roadway,” and that “Officer Lewis’s testimony about Pulido’s behavior is enough to sustain Pulido’s conviction.” The State asserts that “Pulido placed himself in a situation where each drunken step could have placed him on a city street, endangering his life.” …

The public intoxication statute neither defines the term “endangers the person’s life” nor the general term of endangerment. …

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It is undisputed that Pulido was intoxicated in a public place. The State, however, did not present any evidence of Pulido’s past or present conduct or action that endangered his life. See Davis, 13 N.E.3d at 503. We reject the State’s argument that the evidence was sufficient to support his conviction because Pulido’s act of being intoxicated while on the sidewalk “created a dangerous situation.” The statute required that the State prove that Pulido “endanger[ed] [his] life[.]” I.C. § 7.1-5-1-3(a)(1). We also reject the State’s suggestion that we should affirm Pulido’s public intoxication conviction based on Officer Lewis’ attempt to protect Pulido from any future, potential harm of walking in the street and getting struck by a car. The State’s argument is “merely speculative, not proof beyond a reasonable doubt.” See Davis, 13 N.E.3d at 504.

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Given the evidence presented during Pulido’s bench trial and the specific language of subsection (a)(1) of the public intoxication statute as set forth by our legislature, we conclude that the State failed to prove beyond a reasonable doubt that Pulido had endangered his own life. See, e.g., Davis, 13 N.E.3d at 503-04; Sesay, 5 N.E.3d at 486.

Reversed.

Robb, J., and Mathias, J., concur.

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