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Davis v. State

Court of Appeals of Indiana

July 17, 2014

CLYDE DAVIS, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Linda E. Brown, Judge, The Honorable Christina Klineman, Commissioner. Cause No. 49F10-1308-CM-50927.

ATTORNEYS FOR APPELLANT: RUTH JOHNSON, BARBARA J. SIMMONS, Marion County Public Defender Agency, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; JESSE R. DRUM, Deputy Attorney General, Indianapolis, Indiana.

KIRSCH, Judge. BAILEY, J., and MAY, J., concur.

OPINION

Page 501

KIRSCH, Judge.

Clyde Davis appeals from his conviction for Class B misdemeanor public intoxication.[1] On appeal, Davis contends that the State failed to provide sufficient evidence of endangerment.[2]

We reverse.

FACTS AND PROCEDURAL HISTORY

On August 3, 2013, Davis was at Toni Richard's apartment drinking alcohol with Richard's boyfriend. That evening, Officer Michael Wagner-Gilbert of the Indianapolis Metropolitan Police Department responded to a call of a disturbance at Richard's apartment. Davis and Richard's boyfriend had been fighting. Officer Wagner-Gilbert instructed Davis to leave Richard's home and not to return or else he would be arrested for criminal trespass. Davis informed Officer Wagner-Gilbert that he would walk home, even though his home was some distance away. Officer Wagner-Gilbert noted that Davis had been drinking but concluded that Davis was capable of walking home safely. Officer Wagner-Gilbert left Richard's home without making any arrests.

Davis never left Richard's apartment. Early in the morning of August 4, 2013, Officer Wagner-Gilbert responded to a second call of a disturbance at Richard's apartment. When the officer approached in his patrol car, he observed Davis standing

Page 502

outside in a grassy common area of the apartment complex. As Davis walked into the street where the patrol car was parked, Officer Wagner-Davis saw that Davis walked with difficulty, stumbling and tripping over his own feet. Officer Wagner-Davis and his partner held Davis up and leaned him against the patrol car. Davis's eyes were bloodshot, he smelled heavily of alcohol, and he slurred his speech. Officer Wagner-Gilbert had encountered many intoxicated people during his eleven and one-half years on the job. He concluded that Davis was " extremely intoxicated." Tr . at 10. The two-lane roads outside the apartment complex were busy even at that time of the morning, there were no sidewalks or shoulders abutting the roads, and the lighting on the roads was poor. Officer Wagner-Gilbert feared that if he allowed Davis to walk away, Davis would be struck by a car. Officer Wagner-Gilbert arrested Davis.

The State charged Davis with public intoxication as a Class B misdemeanor. The trial court found Davis guilty and sentenced him to 180 days, with 178 days suspended ...


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