Johnathan Robinson v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
Nov 27 2013, 5:41 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PAULA M. SAUER GREGORY F. ZOELLER
Danville, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOHNATHAN ROBINSON, )
)
Appellant-Defendant, )
)
vs. ) No. 32A05-1304-CR-178
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Mark A. Smith, Judge
Cause No. 32D04-1212-FD-1218
November 27, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Johnathan Robinson appeals his conviction for inhaling toxic vapors as a class B
misdemeanor. Robinson raises one issue, which we restate as whether the evidence is
sufficient to sustain his conviction. We affirm.
FACTS AND PROCEDURAL HISTORY
On December 3, 2012, Hendricks County Sheriff’s Deputy Joshua Nohren
observed a vehicle cross the center line, travel into oncoming traffic lanes, and then stop
on the shoulder of the opposite side of the road. As Officer Nohren approached the
vehicle, he observed Robinson “digging in the center console.” Transcript at 185.
Robinson was “slumped over,” his “eyes [were] real wide,” and “his speech was severely
slurred.” Id. Officer Nohren attempted to have Robinson exit the vehicle, but he “just
like [] slump[ed] and [] just [came] completely out of the vehicle because again his motor
function skills [were] completely gone.” Id. at 186-187. Robinson “left the vehicle in
drive the whole entire time,” and, when he “slump[ed] out of the vehicle, the vehicle . . .
start[ed] taking off,” and Officer Nohren began “jerking on the steering wheel.” Id. at
187. Robinson put his foot on the brake and they placed the vehicle in park. Officer
Nohren noted that Robinson “would attempt to try to speak but it was so slurred [he]
couldn’t even understand.” Id. at 189. Officer Nohren called for assistance from
additional officers, and while waiting for them to arrive, noticed that Robinson began to
speak more clearly, was able to walk on his own, and no longer had his head down.
Officer Nohren recognized that Robinson’s impairment was short-term and consistent
with inhaling toxic vapors.
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Officer Nohren noticed that the center console lid was “still half cracked up” and
that “[w]hat was stopping that lid from the center console from coming down was an
aerosol can.” Id. at 192. The aerosol can was Dust-Off, a dust and lint removal spray.
Officer Nohren noticed that the aerosol can was “freezing cold,” which indicated that “it
had been used.” Id. After being placed under arrest and advised of his Miranda rights,
and in Officer Nohren’s patrol vehicle, Robinson admitted that he had inhaled the Dust-
Off in order to “get high” and stated that he believed the drug test at the work release
center would not disclose that he had inhaled the substance. Id. at 196.
On December 4, 2012, the State charged Robinson with operating while
intoxicated as a class A misdemeanor, inhaling toxic vapors as a class B misdemeanor for
inhaling the fumes of difluoroethane, and driving left of center as an infraction. On
December 12, 2012, the State filed a motion to amend the charge for operating while
intoxicated to a class D felony because Robinson had a conviction for operating while
intoxicated within the previous five years. The court granted the motion. On February
15, 2012, the State amended the charge for inhaling toxic vapors to allege that Robinson
inhaled the fumes of a “chemical having the property of releasing toxic vapors.”
Appellant’s Appendix at 12. At Robinson’s jury trial, the State presented the testimony
of Officer Nohren and Dr. Scott Kriger, a forensic toxicologist. Robinson testified that,
while driving his vehicle back to the work release center, he saw a squirrel darting across
the road, swerved to the left to avoid hitting the squirrel, ran up over the median, and then
hit a stop sign with his right mirror. Robinson also testified that he had used the Dust-Off
to clean his cell phone. The jury found him guilty as charged. The court sentenced him
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to 1095 days with 365 days suspended for his conviction for operating while intoxicated
as a class D felony, and to a concurrent term of 180 days for his conviction for inhaling
toxic vapors as a class B misdemeanor.
ISSUE AND STANDARD OF REVIEW
The issue is whether the evidence is sufficient to sustain Robinson’s conviction for
inhaling toxic vapors as a class B misdemeanor.1 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.DISCUSSION
Robinson argues that the State failed to prove beyond a reasonable doubt that the
substance present in the Dust-Off can was a “chemical having the property of releasing
toxic vapors.” Appellant’s Brief at 6. The offense of inhaling toxic vapors is governed
by Ind. Code § 35-46-6-2, which provides: “A person who, with intent to cause a
condition of intoxication, euphoria, excitement, exhilaration, stupefaction, or dulling of
the senses, ingests or inhales the fumes of: . . . (3) any other chemical having the property
of releasing toxic vapors . . . commits inhaling toxic vapors, a Class B misdemeanor.”
1
Robinson does not appeal his conviction for operating while intoxicated or the finding that he
drove left of center.
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Robinson’s sole argument is that the State failed to establish “that any substance in
the Dust-Off can fell within the statutory language.” Appellant’s Brief at 11.
Specifically, Robinson asserts that Officer Nohren “did not testify that in either his
training or experience, he had ever dealt with a case involving Dust-Off or its chemical
compound,” that Officer Nohren did not specifically identify the chemical compound in
Dust-Off or that it had the property of releasing toxic vapors, and that he was not an
expert on intoxication by inhaling Dust-Off. Id. Robinson further asserts that the
chemicals named by Dr. Kriger as those generally found in this type of aerosol are not
listed in Ind. Code § 35-46-6-2 and that Dr. Kriger did not explicitly state that the
chemical present in Dust-Off, difluoroethane, is a chemical having the property of
releasing toxic vapors. Robinson also argues that, while difluoroethane is listed as an
ingredient on the can of Dust-Off, the toxicologist did not perform a chemical analysis on
the contents of the can. The State maintains that ample evidence demonstrated that the
gas has the property of releasing toxic vapors, and that Robinson appeared intoxicated in
a manner consistent with the effects of inhaling difluoroethane, that the label on the Dust-
Off can states that it contained difluoroethane, and that during trial Dr. Kriger testified
that the case involved toxic vapors and the possible effects of inhaling difluoroethane.
In Vasquez v. State, the Indiana Supreme Court addressed whether the State
presented evidence sufficient to prove that the substance inhaled by the defendant was
toluene, a drug listed under Ind. Code § 35-46-6-2(2). 741 N.E.2d 1214, 1216 (Ind.
2001). The Court held that the “identity of a drug can be proven by circumstantial
evidence,” that “[t]he opinion of someone sufficiently experienced with the drug may
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establish its identity, as may other circumstantial evidence,” that, “[a]lthough chemical
analysis is one way, and perhaps the best way, to establish the identity of a compound,
persons experienced in the area may be able to identify cigarette smoke, marijuana, and
even toluene,” and “[t]his is true even if every citizen may not be up to that task.” Id. at
1216-1217. The Court noted in Vasquez that there was testimony of those familiar with
the substance and other circumstantial evidence and that although not experts the officers
testified that based on their observations and experience the substance smelled and
looked like toluene. The Court held that the officers’ testimony was sufficient to support
the finding that the substance contained toluene. Id. at 1217.
The evidence most favorable to Robinson’s conviction reveals that Officer Nohren
discovered the Dust-Off can close to the driver’s seat of Robinson’s vehicle, that the can
was cold indicating recent use, and that Robinson appeared impaired. The can of Dust-
Off admitted into evidence contained a written label stating that the can contained
difluoroethane. In addition, the label warned that intentional misuse or abuse of the
product could be fatal. Dr. Kriger testified that he was the chief forensic toxicologist at
the Indiana State Department of Toxicology, that he had about seventeen years of
experience in the field, and that he had been working in forensics for about eight years.
When asked what kind of chemicals are in aerosol cans such as Dust-Off, Dr. Kriger
testified “they’re generally referred to as refrigerants, [] either chlorofluorocarbons or
fluorohydrocarbons.” Transcript at 283. Dr. Kriger indicated that an individual can
become intoxicated by the use of those inhalants. When asked to describe to the jury
how an individual can become intoxicated from inhaling the ingredients of a Dust-Off
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can, Dr. Kriger testified that “[o]ne of the primary ingredients in this particular can is
something called difluoroethane and individuals that either huff or they inhale this
substance and what happens is it gets absorbed through the lung - through the lung tissue,
transferred into the blood and then very rapidly transported to the brain.” Id. Dr. Kriger
testified that “individuals that [] inhale this particular chemical suffer from a multitude of
potential problems,” including potential death caused by cardiac arrest, and the
individuals may experience significant spatial and temporal distortions, poor muscle
dexterity and movement, poor balance, slurred speech, loss of consciousness, pupil
dilation, and elevated body temperature. Id.
The jury was able to consider the evidence and testimony regarding Robinson’s
condition when approached by Officer Nohren, and determine whether Robinson inhaled
fumes from the can of Dust-Off and whether the Dust-Off included a chemical having the
property of releasing toxic vapors. Based upon our review of the evidence as set forth in
the record and discussed above, we conclude that sufficient evidence exists from which
the jury could find Robinson guilty beyond a reasonable doubt of inhaling toxic vapors as
a class B misdemeanor. See Vasquez, 741 N.E.2d at 1217 (finding the evidence was
sufficient to support the finding that the substance inhaled by the defendant was a
substance identified in Ind. Code § 35-46-6-2 and affirming the defendant’s conviction
for inhaling toxic vapors); Upp v. State, 808 N.E.2d 706, 707-708 (Ind. Ct. App. 2004)
(finding the evidence was sufficient to support the inference that the bag into which the
defendant had been breathing contained glue and that the defendant was impaired and
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thus holding that the evidence was sufficient to support the defendant’s class B
misdemeanor conviction under Ind. Code § 35-46-6-2).
CONCLUSION
For the foregoing reasons, we affirm Robinson’s conviction for inhaling toxic
vapors as a class B misdemeanor.
Affirmed.
NAJAM, J., and MATHIAS, J., concur.
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