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

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.
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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.
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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
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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
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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
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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.
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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.
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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.
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[16] Affirmed.
Crone, J., and Brown, J., concur.
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