Candice Scarbrough v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 25, 2018
• Docket: 18A-CR-2
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 25 2018, 9:33 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Rory Gallagher Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Candice Scarbrough, July 25, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David Hooper, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G12-1610-CM-39839

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018 Page 1 of 9 Case Summary [1] Candice Scarbrough (“Scarbrough”) appeals her conviction, following a bench

trial, for operating a vehicle while intoxicated endangering a person, a Class A

misdemeanor.1 On appeal she raises the sole issue of whether the State

presented sufficient evidence to support her conviction.

[2] We affirm.

Facts and Procedural History [3] The facts most favorable to the judgment are as follows. On October 8, 2016, at

approximately 9:22 p.m., Officer Lance Rector (“Officer Rector”) of the

Indianapolis Metropolitan Police Department was on patrol when he was

dispatched to the area of South Madison Avenue to investigate a report of a

potentially impaired driver. Appellant’s App. at 16. Officer Rector, who had

been an Indianapolis police officer since 2004, became a drug recognition

expert (“DRE”) through the International Association of Chiefs of Police

(“IACP”), and in 2003, he was made an instructor for the IACP’s DRE

program. Between 2013 and 2015, Officer Rector attended nursing school at

Ivy Tech Community College in Columbus, Indiana, where he was educated in

1 Ind. Code § 9-30-5-2.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018 Page 2 of 9 pharmacology. He also participated in continuing education on different types

of drugs and the classifications of pharmacology.

[4] On receiving the dispatch, Officer Rector drove to the area, where he saw a

truck that had stopped in the middle of the traveled part of South Madison

Avenue. Officer Rector approached the truck, which was “in gear” with the

engine running, but it was not moving. Tr. at 6. He saw Scarbrough sitting

behind the wheel, slumped forward onto the steering wheel. No one else was in

the vehicle. Scarbrough did not respond to Officer Rector’s verbal commands

and, when Officer Rector shook her, she remained unconscious and slumped to

one side. Officer Rector placed the truck in park and turned off the engine. He

saw that Scarbrough was not breathing normally, and “[h]er respiratory rate

was almost non-existent, like one to two breaths per minute.” Id. at 7. Officer

Rector administered a sternum rub to Scarbrough to rouse her; however, she

did not respond.

[5] Officer Rector removed Scarbrough from the truck and carried her to a grassy

area on the side of the road. After he laid Scarbrough on the ground, Officer

Rector “reassessed her breathing rate and at that time she was extremely

hypoxic. Her oxygen levels were so low that her lips were starting to turn

blue.” Id. at 8. Officer Rector opened one of Scarbrough’s eyes and found that

her pupil was, “extremely pinpoint, which is a main indicator of a narcotic

analgesic classification of a drug ingestion.” Id. From his education and

training, Officer Rector recalled that narcotics are “unique because it’s [sic] the

only drug that will cause constriction of the pupils.” Id. at 8-9. Officer Rector

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018 Page 3 of 9 explained at trial that narcotic drugs also suppress respiration, which can cause

respiratory arrest.

[6] Officer Rector went to his police cruiser and obtained a nasal-mist applicator of

Naloxone, which is the antidote for a narcotic overdose. He injected

Scarbrough’s nostril with one nasal mist dose of Naloxone and observed her

response. After approximately ten minutes, Scarbrough’s low rate of breathing

had not changed. Officer Rector then asked another officer who had responded

for his Naloxone applicator. Officer Rector explained at trial that it was not

uncommon to administer more than one dose of Naloxone, due to the strength

of the narcotics and the delivery of the dose through a nasal mist rather than an

IV.

[7] Officer Rector provided a second administration of Naloxone to Scarbrough

and, approximately three to four minutes later, Scarbrough regained

consciousness. She was placed on a gurney for transportation by ambulance to

the hospital. Officer Rector testified that, upon arrival at the hospital,

Scarbrough was sitting up in the gurney, talking, and “appeared to be normal

and perfectly fine.” Id. at 9-10. Scarbrough was taken to the hospital’s prisoner

holding area where Indiana’s implied-consent warning was read to her. She

declined to participate in a chemical test.

[8] On October 9, 2016, the State charged Scarbrough with one count of operating

a vehicle while intoxicated endangering a person, a Class A misdemeanor.

Following an August 30, 2017, bench trial at which Officer Rector was the sole

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018 Page 4 of 9 witness, the court found Scarbrough guilty as charged. On December 6, the

trial court sentenced Scarbrough to 365 days of incarceration, with five days

executed, 360 days suspended, and 360 days of probation. This appeal ensued.

Discussion and Decision [9] Scarbrough challenges the sufficiency of the evidence to support her conviction

for operating a vehicle while intoxicated endangering a person, a Class A

misdemeanor. Our standard of review of the sufficiency of the evidence is well-

settled:

When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence.” Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.

Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.

Moreover, “[a] conviction may be based on circumstantial evidence alone so

long as there are reasonable inferences enabling the factfinder to find the

defendant guilty beyond a reasonable doubt.” Lawrence v. State, 959 N.E.2d

385, 388 (Ind. Ct. App. 2012) (citation omitted), trans. denied.

[10] To support Scarbrough’s conviction for operating a vehicle while intoxicated as

a Class A misdemeanor, the State must prove that Scarbrough operated a

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018 Page 5 of 9 vehicle, while she was intoxicated, and in a manner that “endangers a person.”

I.C. § 9-30-5-2. First, Scarbrough admits that there was “strong evidence that

she operated the truck shortly before [Officer Rector] arrived.” Appellant’s Br.

at 10. And the evidence indicated that she was the only person in the driver’s

seat of a vehicle that was stopped, but still running, in the middle of the traveled

part of a road. From that evidence, the fact-finder could reasonably infer that

Scarbrough drove the vehicle, stopped it, and passed out in the travel lane of the

road. That is sufficient evidence that Scarbrough “operated a vehicle.” Id.; see

also Mordacq v. State, 585 N.E.2d 22, 24 (Ind. Ct. App. 1992) (listing cases where

defendants have been held to be operating vehicles when found at the wheel of

a car with its engine running, including cases where the car was: on the median

strip of a four-lane highway, Bowlin v. State, 330 N.E.2d 353 (1975); stopped at

an intersection, with the defendant asleep, Rose v. State, 345 N.E.2d 257 (1976);

and, stopped in a lane of traffic on a county road, with the defendant asleep,

Traxler v. State, 538 N.E.2d 268 (1989)).

[11] Second, Scarbrough challenges the sufficiency of the evidence she was

intoxicated. “Intoxicated” is defined, in relevant part, as being “under the

influence of … a controlled substance … so that there is an impaired condition

of thought and action and the loss of normal control of a person’s faculties.”

I.C. § 9-13-2-86. This court has consistently held that “[p]roof of intoxication

does not require proof of blood alcohol content; it is sufficient to show that the

defendant was impaired.” Gatewood v. State, 921 N.E.2d 45, 48 (Ind. Ct. App.

2010) (citing Ballinger v. State, 717 N.E.2d 939, 943 (Ind. Ct. App. 1999)), trans.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018 Page 6 of 9 denied. And “impaired,” within the meaning of this statute, “is established by

certain behaviors and traits evincing impairment,” such as impaired attention

and reflexes. Curtis v. State, 937 N.E.2d 868, 873 (Ind. Ct. App. 2010) (citing

Gatewood, 921 N.E.2d at 48). Moreover, impairment may be shown by

reasonable inferences drawn from the evidence. Tin Thang v. State, 10 N.E.3d

1256, 1260 (Ind. 2014).

[12] Here, there was sufficient evidence that Scarbrough was intoxicated. Officer

Rector, who has training and experience in drug recognition, testified that he

found Scarbrough unconscious behind the wheel of a truck that was still

running. On further examination, he found that Scarbrough’s respiration was

suppressed to the point that her lips were starting to turn blue. Officer Rector

testified that suppressed respiration is a symptom of narcotic drug use. In

addition, he testified that he examined Scarbrough’s eyes and found that her

pupils were constricted, which is a unique indicator of narcotic ingestion. And

Scarbrough regained consciousness only after receiving a second dose of

Naloxone, the antidote for a narcotic overdose. From this evidence, it was

reasonable for the trial court to infer that Scarbrough was impaired as a result of

the use of a narcotic drug; i.e., she was intoxicated. I.C. § 9-13-2-86.

Scarbrough’s contentions to the contrary are merely requests that we reweigh

the evidence, which we will not do. Clemons, 996 N.E.2d at 1285.

[13] Finally, Scarbrough asserts that the State failed to provide sufficient evidence

that she operated the vehicle in a manner that endangered anyone. To prove

endangerment, the State must provide evidence beyond mere intoxication.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018 Page 7 of 9 Sesay v. State, 5 N.E.3d 478, 484 (Ind. Ct. App. 2014), trans. denied. Rather, the

State must prove that “the defendant was operating the vehicle in a condition or

manner that could have endangered any person, including the public, police, or

the defendant.” Staten v. State, 946 N.E.2d 80, 84 (Ind. Ct. App. 2011), trans.

denied. Thus, in Labarr v. State, 36 N.E.3d 501, 503 (Ind. Ct. App. 2015), for

example, we held that the State proved the defendant endangered himself with

evidence that the defendant was unconscious in a minivan parked on a public

street near a busy bar, leaving him “vulnerable to injuries resulting from traffic

accidents, falling down, and being victimized by passersby.”

[14] Here, the State presented sufficient evidence that Scarbrough endangered

herself and others. She was unconscious in a vehicle that was stopped, but still

running and in gear, in the middle of the traveled part of a public street at

nighttime. This not only left Scarbrough vulnerable to injury from traffic

accidents, but others as well. Of course, it also left Scarbrough vulnerable to

“being victimized by passersby.” Id. The State presented sufficient evidence

from which the trial court could reasonably infer that Scarbrough operated a

vehicle in a manner that endangered herself and others.

Conclusion [15] The State provided sufficient evidence that Scarbrough operated a vehicle while

intoxicated and in a manner that endangered herself and others. I.C. § 9-30-5-2.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018 Page 8 of 9 [16] Affirmed.

Crone, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018 Page 9 of 9