Joshua James Wozniak v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 20 2021, 8:44 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court

Court of Appeals

the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bryan M. Truitt Theodore E. Rokita Valparaiso, Indiana Attorney General of Indiana Steven J. Hosler

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Joshua James Wozniak, January 20, 2021 Appellant-Defendant, Court of Appeals Case No.

20A-CR-947

v. Appeal from the LaPorte Superior Court

State of Indiana, The Honorable Michael S Appellee-Plaintiff. Bergerson, Judge Trial Court Cause No.

46D01-1902-F1-154

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-947 | January 20, 2021 Page 1 of 9

[1] Joshua James Wozniak (“Wozniak”) appeals his conviction for reckless homicide. We affirm.

Facts and Procedural History [2] Larry Wozniak (“Larry”) suffered from chronic obstructive pulmonary disease, emphysema, and atrial fibrillation. Larry was on pain medication for an extended period of time and turned to self-medicating in June 2018. In July 2018, he had pneumonia and was placed in a hospital and then a nursing home from July 2018 to October 2018. When he was released from the nursing home, his daughter, Amy Williams, believed that he was “detoxed” and “clean.” Transcript Volume III at 90.

[3] Around Christmas 2018, Larry had a change of heart regarding his son, Wozniak, and felt bad that Wozniak was going to spend Christmas alone and invited him to his house. Wozniak began staying at Larry’s residence and was there almost every night between December 25, 2018, and January 24, 2019.

[4] In December 2018, Wozniak met Amelia McCullough, and they purchased drugs on the first day they met. In January 2019, McCullough moved in with Wozniak and Larry. Wozniak, McCullough, and Larry used heroin and crack cocaine together, Larry funded the purchase of the drugs, and Wozniak, McCullough, and Wozniak’s friend, Katie Rushing, would purchase the drugs. Wozniak tried to help Larry inject heroin most of the time.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-947 | January 20, 2021 Page 2 of 9

[5] On January 23, 2019, Wozniak and McCullough went to South Bend, purchased heroin, and returned home. 1 They used drugs, ate dinner, and used drugs again. At some point, McCullough went upstairs, watched television, and fell asleep. Around noon on January 24, 2019, Wozniak woke McCullough and told her Larry was dead. Wozniak indicated to her that Larry had “gotten into heroin over night.” Id. at 43. Wozniak, McCullough, and Rushing cleaned up the drugs and paraphernalia, and Wozniak called 911.

[6] Jennifer Banks, the Chief Deputy Coroner of LaPorte County, responded to the scene following a dispatch regarding a deceased person. Banks introduced herself to Wozniak, and he asked her: “How long is this going to take?” Transcript Volume II at 223. Wozniak seemed very distressed and stated that his sister was going to kill him. Banks asked him why, and he answered: “Because I gave my dad the drugs.” Id. at 225. Banks asked him what type of drugs Larry had taken, and Wozniak mentioned heroin. Banks found Larry’s medications in the kitchen but did not find any containing morphine.

[7] Meanwhile, Williams texted Larry and tried calling him on January 24, 2019, but received no response. Wozniak texted her around 3:10 p.m. informing her that Larry had died. Williams called Wozniak probably three times before he answered. Wozniak told Williams that Larry had died, that “he had taken care

1 When asked what drugs they purchased that day, McCullough answered: “Uh, heroin probably I don’t, I don’t – I want to say crack cocaine, I’m not sure. I’m not – I don’t remember.” Transcript Volume III at 35. When asked if she said she was certain she purchased heroin but not sure whether she purchased crack cocaine, she answered affirmatively.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-947 | January 20, 2021 Page 3 of 9 of everything,” and “he had found[] him laying with a needle in his arm,” and “he didn’t know what to do, because he was losing his sh--.” Transcript Volume III at 95. Williams went to the funeral home and later went to Larry’s home where she saw that Larry’s rental truck was gone and observed “a pretty big mess” and “a lot of drug paraphernalia.” Id. at 97. Specifically, she discovered a tray with needles, glass pipes, baggies, and burned spoons in the oven. She also found syringes and burned spoons underneath piles of mail, and needles underneath and in the couch. She called the police to report the truck as stolen. After speaking with a police officer, she changed the code on the alarm, placed a note on the door indicating that the alarm code had been changed, and set the alarm to secure the residence to prevent Wozniak from taking anything from the home.

[8] At some point, Banks drew blood from Larry’s subclavian artery for a toxicology evaluation. Banks called Larry’s doctor’s office and learned that Larry had COPD, “lumbar radiopathy,” an adrenal tumor, anxiety, depression, and atrial fibrillation. Transcript Volume II at 232. Larry’s nurse practitioner also informed her that his doctor tried to find a drug rehabilitation program for him at the last appointment. The toxicology report indicated positive results for cocaine, benzoylecgonine, morphine, and monoacetylmorphine. 2

2 Dr. John Feczko testified that “in laymen’s terms uh, whenever I see morphine in addition to monoacetylmorphine that means heroin, 100 percent.” Transcript Volume III at 125.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-947 | January 20, 2021 Page 4 of 9

[9] On January 25, 2019, Larry was embalmed. On January 28, 2019, a funeral was held, and a wake occurred a day later. At the dinner, Williams spoke with a friend, Long Beach Police Chief Bob Sulkowski, who gave her the contact information for LaPorte County Sheriff’s Deputy Andrew Hynek, a detective with the LaPorte County Drug Task Force. Williams and her husband contacted Deputy Hynek, and a criminal investigation began.

[10] On February 4, 2019, Deputy Hynek interviewed Wozniak. Wozniak initially stated that he was not present and spent the night at his trailer. Wozniak’s story evolved, and he ultimately stated that he loaded a syringe, gave it to Larry, and saw him hit the vein.

[11] On September 3, 2019, Larry’s body was exhumed, and Dr. John Feczko performed an autopsy on Larry and determined that the cause of death was a drug overdose related to the heroin and cocaine with his lung and heart disease as contributory factors.

[12] In an amended information, the State charged Wozniak with dealing in a controlled substance resulting in death as a level 1 felony and reckless homicide as a level 5 felony.

[13] In January 2020, the court held a jury trial. During cross-examination, Banks testified that the cause and manner of death determination was an accidental overdose. McCullough testified, and when asked if she had ever seen Larry inject himself, she answered: “I don’t remember, I don’t think so. I don’t think so.” Transcript Volume III at 26. She testified she believed she had seen Larry Court of Appeals of Indiana | Memorandum Decision 20A-CR-947 | January 20, 2021 Page 5 of 9 try to inject himself, but she had never seen him succeed in hitting a vein. She also testified that when Larry wanted drugs he would generally say “son, I’m dying, I’m dying.” Id. at 32. When asked if she interpreted Larry’s statement to mean that he was actually physically dying, she answered: “No, I just took that to mean maybe he was sick from not having drugs.” Id. She testified that Larry would ask Wozniak for more drugs and that Wozniak would say no. On cross-examination, she stated that Larry asked for drugs probably every day.

[14] Dr. Feczko testified that he discovered a 75% blockage in one of Larry’s coronary arteries and described the blockage “as something that’s pretty significant um, that uh, you could potentially die from that, potentially have a deadly arrhythmia from that. Uh, or could have a heart attack from that.” Id. at 131. He later testified that he did not find any acute heart attack or any chronic heart attack and “just the blockage, arthroscopic blockage and then a thickening in the ventricles from high blood pressure.” Id. at 132. He testified that the drug overdose related to the heroin and cocaine caused Larry’s death and that his lung and heart disease were contributing factors. He also testified that “there’s no question in my mind that the drugs killed him.” Id. at 136. On cross-examination, he testified that he ruled the manner of death to be an accident. On redirect, he indicated that Larry would not be dead on January 24th but for the fact that he took heroin and cocaine.

[15] Williams and Deputy Hynek also testified, and the court admitted a recording of the interview of Wozniak. After the State rested, Dr. Daniel Joseph McCoy testified that he reviewed the autopsy report and disagreed with the conclusion Court of Appeals of Indiana | Memorandum Decision 20A-CR-947 | January 20, 2021 Page 6 of 9 that drugs played a role in Larry’s death. He indicated he was not saying drugs did not cause the death but that he could not tell based on the information. On cross-examination, Dr. McCoy testified that a lower level of heroin or cocaine could be fatal for an individual with certain health conditions and that cocaine stresses the heart in a way that would not be beneficial for a person with atrial fibrillation. He also indicated that he did not personally study or observe Larry’s level of heart or lung disease.

[16] The jury found Wozniak not guilty of dealing in a controlled substance resulting in death and guilty of reckless homicide as a level 5 felony. The court sentenced Wozniak to five years and ordered that, upon successful completion of a clinically appropriate substance abuse treatment program as determined by the Department of Correction and after serving at least three years of the sentence, Wozniak would be allowed to file a petition for modification.

Discussion

[17] The issue is whether the evidence is sufficient to sustain Wozniak’s conviction for reckless homicide. Without citation to the record, Wozniak asserts that he was attempting to bring his father a pain-free life and that Larry could no longer function without the drugs. He argues that there is considerable doubt as to whether the illegal drugs caused Larry’s death. He asserts that he was “no more than a compassionate son” and that he showed compassion and was not reckless. Appellant’s Brief at 11.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-947 | January 20, 2021 Page 7 of 9

[18] When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the reasonable inferences therefrom that support the verdict. Id. We will affirm the conviction if there exists evidence of probative value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id.

[19] Ind. Code § 35-42-1-5 provides that a person who recklessly kills another human being commits reckless homicide, a level 5 felony. “A person engages in conduct ‘recklessly’ if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.” Ind. Code § 35- 41-2-2(c). “[A] defendant’s conduct need not be the sole cause of a death in order to support a conviction for reckless homicide. The State must only prove that the defendant’s conduct was a proximate cause of the victim’s death.” Barber v. State, 863 N.E.2d 1199, 1205 (Ind. Ct. App. 2007), trans. denied.

[20] The record reveals that Larry suffered from chronic obstructive pulmonary disease, emphysema, and atrial fibrillation. Williams testified that Larry was in a hospital and then a nursing home from July 2018 to October 2018 where he became clean. On direct examination of McCullough, when asked if she had ever seen Larry inject himself, she answered: “I don’t remember, I don’t think so. I don’t think so.” Transcript Volume III at 26. She also testified that she believed she had seen Larry try to inject himself, but had never seen him succeed in hitting a vein. Wozniak went to South Bend with McCullough, Court of Appeals of Indiana | Memorandum Decision 20A-CR-947 | January 20, 2021 Page 8 of 9 purchased heroin, and returned home on January 23, 2019. After Banks, the Chief Deputy Coroner of LaPorte County, responded to the scene, Wozniak stated that his sister was going to kill him “[b]ecause I gave my dad the drugs.” Transcript Volume II at 225. During his interview with Deputy Hynek, Wozniak’s story evolved and he ultimately stated that he loaded a syringe, gave it to Larry, and saw him hit the vein. Dr. Feczko testified that he determined the cause of death was a drug overdose related to the heroin and cocaine, with his lung and heart disease as contributory factors. He testified “there’s no question in my mind that the drugs killed him.” Transcript Volume III at 136.

[21] We conclude the State presented evidence of probative value from which a reasonable jury could have determined beyond a reasonable doubt that Wozniak committed the offense of reckless homicide.

[22] For the foregoing reasons, we affirm Wozniak’s conviction. [23] Affirmed.

Vaidik, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-947 | January 20, 2021 Page 9 of 9