As Corrected September 4, 2014.
These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Rebekah Pierson-Treacy, Judge. The Honorable Shatrese Flowers, Commissioner. Cause No. 49F19-1211-CM-78764.
ATTORNEYS FOR APPELLANT: SUZY ST. JOHN, Indianapolis, Indiana; ANDREW BEAN, Certified Legal Intern, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; CHANDRA K. HEIN, Deputy Attorney General, Indianapolis, Indiana.
RILEY, Judge. ROBB, J. concurs. BRADFORD, J. dissents with separate opinion.
OPINION ON REHEARING - NOT FOR PUBLICATION
Appellant-Defendant, Aubrey Thompson (Thompson), was convicted of public intoxication, a Class B misdemeanor, Ind. Code § 7.1-5-1-3, on June 27, 2013. She subsequently appealed. In a memorandum decision, our court overturned her conviction, finding there was insufficient evidence to prove that Thompson, while intoxicated and in a public place, had endangered either her own life or that of another person. Thompson v. State,
No. 49A02-1307-CR-606, 13 N.E.3d 950, (Ind.Ct.App. June 4, 2014). The State has petitioned for rehearing, which we now grant for the limited purpose of clarifying our decision in light of Thang v. State, 10 N.E.3d 1256 (Ind. 2014).
Our supreme court issued its opinion in Thang three weeks after we decided Thompson's case. Like Thompson, the defendant in Thang was convicted of public intoxication under the endangerment prongs of the Public Intoxication (P.I.) Statute. Thang, 10 N.E.3d at 1257-58; see I.C. § 7.1-5-1-3(a)(1)-(2). The supreme court affirmed Thang's conviction because the evidence created a reasonable inference that he " had . . . driv[en] his automobile on the public streets while intoxicated, thereby endangering his or another person's life." Thang, 10 N.E.3d at 1260.
The State now contends that the facts of Thang are " indistinguishable from the present case" and, as such, our court should affirm Thompson's conviction. (Petition for Reh'g p. 1). In particular, the State argues that the element of endangerment is established from the evidence that Thompson had driven herself to her friend's apartment " in an intoxicated state and was about to drive away when police stopped her." (Petition for Reh'g p. 2). While we acknowledge that Thang has impacted our initial opinion, we disagree with the State that it conclusively compels upholding Thompson's conviction.
In our memorandum decision, we reversed Thompson's conviction for two reasons. First, we found that Thompson never engaged in any affirmative conduct to place herself or another person in danger. Thompson,
No. 49A02-1307-CR-606, slip op. at 7-8. Although the police believed that Thompson intended to drive herself while in an intoxicated state, we concluded that " speculation regarding things that could
happen in the future is not sufficient to prove the present crime of public
intoxication." (quoting Sesay v. State, 5 N.E.3d 478, 485 (Ind.Ct.App. 2014), trans. denied ). Second, we found that even if Thompson had driven herself away from the scene that night, the P.I.
Statute demands more than evidence of her intoxication to prove that she
endangered her own life or the life of another person. In reaching this conclusion, we relied on the language of the Operating While Intoxicated (OWI) Statute, which provides that it is a Class C misdemeanor if an individual drives while intoxicated but elevates the charge to a Class A misdemeanor if the driver is intoxicated and
drives in a manner that endangers a person. [slip op.] at 9-10; see I.C. § 9-30-5-2. Because evidence of intoxication is not per se evidence of endangerment under the OWI Statute, we likewise found that it would be insufficient, by itself, to prove endangerment under the P.I. Statute. Thompson,
No. 49A02-1307-CR-606, slip op. at 9-10.
However, as the State correctly asserts, our analysis of the interplay between the OWI Statute and the P.I. Statute has been nullified by Thang, wherein the supreme court found the two statutes to be " wholly distinguishable." Thang, 10 N.E.3d at 1259. Accordingly, pursuant to Thang, even though the OWI Statute requires proof beyond the driver's intoxication to establish endangerment, the element of endangerment for the P.I. Statute is presumed when an intoxicated individual operates a vehicle. Id. at 1259-60. Nevertheless, we find that our first basis for reversing Thompson's conviction--that speculation as to whether she would have driven " does not demonstrate affirmative conduct causing endangerment" --is reconcilable with the supreme court's decision in Thang. Thompson,
In Thang, a police officer stopped at a gas station and entered the restroom, during which time Thang also appeared at the gas station. Thang, 10 N.E.3d at 1257. When the police officer emerged from the restroom, his attention was drawn to Thang, who was exhibiting several hallmarks of intoxication, including unsteadiness, bloodshot eyes, and emitting an odor of alcohol. Id. The officer observed a vehicle in the gas station's parking lot that had not been there at the time he entered the restroom, and he noted that there was nobody else present who could have driven Thang. Id. As a result, the officer ran a check of the license plate and discovered that the vehicle was registered to Thang. Id. In addition, the police officer found the keys to the vehicle in Thang's possession. Id. From these facts, the supreme court ...