Dickson, C.J.
Following a bench trial, defendant Tin Thang was convicted for Public Intoxication, a class B misdemeanor. He appeals his conviction, arguing that the State failed to present sufficient evidence to prove one of the statutory elements for Public Intoxication—that he had endangered himself or others. The Court of Appeals agreed and reversed Thang’s conviction. Thang v. State, 2 N.E.3d 702 (Ind. Ct. App. 2013). We granted transfer and now affirm the trial court.
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. . . A verdict of guilt may be based upon an inference if reasonably drawn from the evidence. See Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).
In a rare departure from this general rule allowing fact-finders to draw reasonable inferences, we have, however, recognized an exception in cases involving the element of “endangerment” in the offense of Operating a Vehicle While Intoxicated [OWI] as a class A misdemeanor. [Footnote omitted.] Outlaw v. State, 929 N.E.2d 196, 196 (Ind. 2010), expressly adopting Outlaw v. State, 918 N.E.2d 379 (Ind. Ct App. 2009). In Outlaw, we acknowledged that prior decisions had found that a showing of intoxicated driving, without more, was adequate to prove endangerment. 918 N.E.2d at 382, expressly adopted by 929 N.E.2d at 196. Responding to a 2001 statutory amendment that had expanded the penal alternatives for OWI to create a class C misdemeanor level of the offense that excluded the “endangerment” element, while retaining this element for the offense as a class A misdemeanor, Outlaw held that, to support a conviction for OWI as a class A misdemeanor, “the State was required to submit proof of ‘endangerment’ that went beyond mere intoxication.” Id. at 382. This unique holding was necessary to give separate effect and meaning to the legislative changes that created independent penal consequences for OWI depending on whether it involved “endangerment” (a class A misdemeanor) or not (a class C misdemeanor).
Outlaw pointed out that the State cannot claim that the same evidence that proves the class C misdemeanor also proves the additional element of endangerment for the class A misdemeanor. Id. at 381. Construing the OWI statute in this way expanded the ability of law enforcement to deter and prosecute driving while intoxicated. An intoxicated driver could thus be apprehended for a class C misdemeanor if he or she simply operated a vehicle, but an intoxicated driver would be subject to conviction for a class A misdemeanor if the manner of operation endangered a person. Nothing in Outlaw, however, suggests that the Court intended a general retreat from the deeply entrenched rule of law permitting fact-finders to draw reasonable inferences from the evidence.
The factors discussed in Outlaw are inapplicable to the Public Intoxication statute. In 2012, the General Assembly amended the Public Intoxication statute to add an element of “endangerment,” but for reasons different and distinguishable from those that motivated the 2001 changes in the OWI statute. [Footnote omitted.] The legislature’s modifications to the Public Intoxication statute were in apparent response to this Court’s decision in 2011 that affirmed the conviction of an automobile passenger for Public Intoxication. See Moore v. State, 949 N.E.2d 343 (Ind. 2011). As explained in Stephens v. State:
Notably, the General Assembly added these elements to the public intoxication statute in 2012, making it no longer a crime to simply be intoxicated in public. The addition of these elements promotes public policy encouraging inebriated persons to avoid creating dangerous situations by walking, catching a cab, or riding home with a designated driver rather than driving while intoxicated.
992 N.E.2d 935, 938 (Ind. Ct. App. 2013) (emphasis added), trans. not sought. Thus the legislature’s purpose in adding the “endangerment” element to the Public Intoxication statute in 2012 was wholly distinguishable from its particularized objectives in modifying the OWI statute in 2001. The propriety of the fact-finder to draw reasonable inferences from the evidence remains generally applicable, including the determination of proof of endangerment for the offense of Public Intoxication at issue in this case. . . . .
As explained above, when determining whether the elements of an offense are proven beyond a reasonable doubt, a fact-finder may consider both the evidence and the resulting reasonable inferences. In reviewing claims of insufficient evidence, appellate courts then consider whether a reasonable fact-finder could find guilt beyond a reasonable doubt based on the evidence and the reasonable inferences drawn therefrom. . . . .
In the present case, the undisputed evidence established the sudden presence of the defendant and his vehicle at a gas station, his intoxication, his possession of the car keys, and the absence of any other person, thus necessitating removal of the car by towing. From these facts, it is a reasonable inference that the defendant had arrived at the gas station by driving his automobile on the public streets while intoxicated, thereby endangering his or another person’s life.
The trial court could reasonably conclude beyond a reasonable doubt that the defendant had been intoxicated in a public place while endangering the life of himself or others. We reject the defendant’s claim of insufficient evidence and affirm the judgment of the trial court.
Rush and Massa, JJ., concur.
David, J., dissents with separate opinion in which Rucker, J., joins:
The General Assembly modified the OWI statutes by separating them into two offenses, adding a specific element of endangerment to the higher level of charge and indicating that, at the lower level, a person could drive while intoxicated without endangering others. And when it amended the public intoxication statute in 2012 it likewise added a specific element of endangerment. If anything, I believe this reflects the same intent for both statutory provisions: to make the fact of endangerment a separate and distinct element from intoxication, that the State must prove beyond a reasonable doubt.
This intent is also reflected in the General Assembly’s 2001 amendment of the definition of “intoxication,” which previously said that a person was intoxicated when he or she was under the influence of alcohol “so that there is an impaired condition of thought and action and the loss of normal control of a person’s faculties to an extent that endangers a person.” Ind. Code § 9-13-2-86 (1991) (emphasis added). But after 2001, the endangerment portion of the definition of intoxication was removed. See Ind. Code § 9-13-2-86 (Supp. 2001); Act of May 9, 2001, P.L.175-2001, § 1, 2001 Ind. Acts 1131; see also Ind. Code § 35-46-9-2 (Supp. 2013).
So before 2001, intoxication presumed—or, rather, required—endangerment. Afterwards, by statutory definition the two terms became separate and distinct. Under today’s holding, however, they are one and the same again—but only in the precise factual context (drunk driving) which caused the General Assembly to separate them in the first place.
The alternative take-away from today’s opinion is that if the endangerment element remains an independent element to be proven beyond a reasonable doubt, i.e., that intoxicated driving is not per se endangerment, then the majority sustains Thang’s conviction on its belief that the fact-finder could draw a reasonable inference from Thang’s intoxicated appearance at the gas station, to his act of driving, to a distinct endangerment element. However, I do not believe there is any evidence in the record to sustain this leap of faith.
It is at most a reasonable inference that Thang drove to the gas station drunk, as there is no direct evidence of his doing so. Certainly he arrived at the gas station somehow, and with the keys in his possession and no other apparent driver, a jury could probably infer that Thang was the vehicle’s driver.
But by the same token there certainly is no evidence in the record as to the manner in which he drove: Did he drive safely and obedient to the traffic laws? Did he swerve across the fog line? Did he nearly drive into a telephone pole? Was the road upon which he drove winding or dangerous? Did he nearly strike a pedestrian or bicyclist? Did he speed or act erratically? Were there even any other cars on the road? If Thang had to do something apart from simply drive drunk to endanger himself or another, then what did he do? We simply do not know, because there was no evidence introduced at trial that would tend to show any of those things.
The decision today effectively vitiates the endangerment element from the public intoxication statute under these circumstances, as the State need no longer present any evidence beyond the fact of the defendant’s intoxicated driving of a vehicle. Thang v. State will be the guidepost that affirms all such convictions on sufficiency review.
Today’s result also muddies the judicial water and will create unusual possibilities for the State, defendants, judges, and juries. By way of example, imagine a hypothetical police officer pulling over a driver on an Indiana highway for a non-driving related reason, such as a tail light being out. See Outlaw, 918 N.E.2d at 380 (defendant stopped for improperly illuminated license plate). And on approaching, the officer discovers that the driver is intoxicated. But the driver had committed no driving errors. He or she had not swerved, changed lanes without signaling, and was travelling below the speed limit.
Under the OWI statutes, the State could charge that driver with class C misdemeanor OWI but not class A misdemeanor OWI, because the proof of intoxication while driving is not sufficient to show endangerment and the General Assembly has clearly reserved that higher level of offense for circumstances involving additional conduct beyond intoxication. But based on the majority’s decision today, the State could charge that driver with class B misdemeanor public intoxication and use the evidence of intoxication to also prove endangerment. In essence, today’s holding also vitiates the class C misdemeanor OWI statute under these facts as the State can always seek a higher penalty by using a different criminal statute.
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. . .The better way forward, I think, would be to use the same approach for both statutes: evidence of intoxication, standing alone, cannot also serve as the evidence that the defendant charged with public intoxication endangered himself or herself, or another person. [Footnote omitted.]
This is not how we have chosen to interpret our OWI statutes and I see no reason to interpret identical terms in the public intoxication statute—particularly in this factual context—any differently. The majority opinion does not give us clear guidance going forward. And because I believe the State failed to show that Thang endangered himself or another person—beyond its at-best circumstantial showing of intoxicated driving—I therefore vote to reverse the trial court.