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
of the Case
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.
sufficient evidence supports Pulido's 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." (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.
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).
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[.]"
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,