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Pulido v. State

Court of Appeals of Indiana

September 12, 2019

Danish Pulido, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Marion Superior Court The Honorable Steven Rubick, Magistrate, Trial Court Cause No. 49G10-1803-CM-008898

          Attorney for Appellant Andrew Stebbins Marion County Public Defender Agency Indianapolis, Indiana.

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Josiah Swinney Deputy Attorney General Michael Sherman Certified Legal Intern Indianapolis, Indiana

          Pyle, Judge.

         Statement of the Case

         [¶1] Danish Pulido ("Pulido") appeals his conviction, following a bench trial, for Class B misdemeanor public intoxication.[1] 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.

         [¶2] We reverse.

         Issue

         Whether sufficient evidence supports Pulido's conviction.

         Facts

         [¶3] 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." (Tr. 3, 4). The officer went to an intersection near "West 30th Street and Muslim Drive"and noticed a man, later identified as Pulido, who "was staggering[.]" (Tr. 3, 4). 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." (Tr. 4). Officer Lewis "also noticed that he had red glassy eyes, and slurred speech." (Tr. 4). She "believed" that Pulido was "heavily intoxicated." (Tr. 5). 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." (Tr. 4). Officer Lewis "was worried about his welfare" and asked Pulido if "there was somebody that [she] could call to come pick him up[.]" (Tr. 4). Pulido "said he did not because he was quote 'so drunk right now[.]'" (Tr. 4). Officer Lewis then arrested Pulido.

         [¶4] 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). (App. Vol. 2 at 12). On March 15, 2019, the trial court held a bench trial, and the State presented one witness. Officer Lewis testified to the facts set forth above. During the officer's testimony, Pulido's counsel raised a hearsay objection when Officer Lewis testified that she had been dispatched to the scene based on an anonymous 9-1-1 caller who had reported that a male was staggering on the sidewalk. The trial court overruled the objection, stating that the "nature of the 9-1-1 call [wa]s admissible." (Tr. 3).

         [¶5] During closing arguments, the State argued that it had "met its burden" and had shown "actual danger" based on "the 9-1-1 call[.]" (Tr. 5). Pulido's counsel again objected, arguing that the 9-1-1 call could not be used as substantive evidence, and the trial court sustained his objection. The State then argued that Pulido's "own statement[s] that he did not know where he was going" and "did not know who to call" had "met the element of endangerment[.]" (Tr. 5-6).

         [¶6] 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." (Tr. 6). 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." (Tr. 6). He also argued that the evidence, ...


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