      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                                FILED
      regarded as precedent or cited before any                                        Aug 28 2020, 8:09 am

      court except for the purpose of establishing                                         CLERK
      the defense of res judicata, collateral                                          Indiana Supreme Court
                                                                                          Court of Appeals
                                                                                            and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Ronald J. Moore                                          Curtis T. Hill, Jr.
      The Moore Law Firm, LLC                                  Attorney General of Indiana
      Richmond, Indiana
                                                               Myriam Serrano
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jeffrey B. Flora,                                        August 28, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               20A-CR-506
              v.                                               Appeal from the Wayne Superior
                                                               Court
      State of Indiana,                                        The Honorable Darrin M.
      Appellee-Plaintiff.                                      Dolehanty, Judge
                                                               Trial Court Cause No.
                                                               89D03-1907-F5-81



      Mathias, Judge.


[1]   Jeffrey Flora (“Flora”) was convicted in Wayne Superior Court of Level 5

      felony causing death when operating a motor vehicle while intoxicated. Flora


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-506 | August 28, 2020           Page 1 of 9
      appeals his conviction and argues that the evidence is insufficient to prove that

      he was intoxicated.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On February 9, 2019, Flora and his girlfriend, Shelby Masters (“Shelby”) were

      planning to travel to Muncie, Indiana with Shelby’s mother, Sandra Morris

      (“Morris”) and Morris’s friend. Initially, Morris intended to pick up Flora and

      Shelby at Shelby’s home at 1:30 p.m., then the group would travel to Muncie.

      Later, the plan changed. Flora and Shelby decided they would meet Morris and

      her friend at Morris’s home, which was approximately ten minutes from

      Shelby’s home. Morris still expected them to arrive around 1:30 p.m.


[4]   Around 2:00 p.m., neighbors saw Flora and Shelby leaving Shelby’s home on

      Flora’s Harley Davidson motorcycle. One neighbor was surprised that the

      couple was traveling on a motorcycle because even though it was a sunny day,

      it was cold. The witnesses reported that Flora was driving the motorcycle and

      Shelby was riding behind him.


[5]   Morris became concerned when Shelby and Flora did not arrive at her home as

      planned. She called their cellphones, but neither answered the call. Morris

      thought maybe they had trouble with the motorcycle. She and her friend began

      driving the route to Shelby’s house to look for them.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-506 | August 28, 2020   Page 2 of 9
[6]    Approximately two miles from Shelby’s home, Morris and her friend noticed

       the sun reflecting off the handlebars of a motorcycle. The motorcycle was lying

       off the road on an embankment near a bridge, which crossed a creek. From

       their position on the road, they could not see Flora or Shelby. Morris and her

       friend exited their vehicle and called 911 to report the crash. The 911 call was

       reported at 2:47 p.m.


[7]    Morris walked toward the motorcycle and saw that it was “clear up on the

       embankment, as far as it could go.” Tr. Vol. III, p. 117. Then she noticed that

       Flora and Shelby were lying in the creek approximately 15 to 20 feet away.

       Morris yelled their names, but they were unconscious and did not respond.


[8]    Flora was lying on his back. He was breathing and moaning. Shelby was lying

       face down and her torso was partially lying on top of Flora. Morris could not

       feel Shelby’s pulse. Morris, her friend, and an individual who stopped to help,

       carefully rolled Shelby off of Flora and onto her back. They performed CPR on

       Shelby before the paramedics and law enforcement arrived approximately ten

       minutes after they placed the 911 call.


[9]    Shelby suffered a cervical fracture to her neck upon impact with the ground and

       died immediately as a result of blunt force trauma. She was pronounced dead at

       the scene of the accident. Flora was transported to a hospital via helicopter.


[10]   Wayne County Sheriff’s Department investigator Seth Biava (“Officer Biava”)

       was informed that a baggie containing over five grams of marijuana was found

       near the scene of the accident. He obtained a search warrant for a blood draw,

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-506 | August 28, 2020   Page 3 of 9
       and Flora’s blood was drawn at approximately 5:30 p.m. Flora’s blood ethanol

       level was .105. He also testified positive for the presence of delta-9 carboxy

       THC and delta 9 THC, and Midazolam, a benzodiazepine. Tr. Vol. II, p. 204;

       Ex. Vol., State’s Ex. 32.


[11]   On July 10, 2019, Flora was charged with Level 5 felony causing death when

       operating a motor vehicle while intoxicated, Level 5 felony causing death when

       operating a motor vehicle with a schedule I or II controlled substance in the

       blood, and Level 5 felony causing death when operating a motor vehicle with

       an ACE of .08 or more. Flora’s jury trial commenced on January 22, 2020.

       Flora presented two defenses: that Shelby was driving the motorcycle and that

       he was not intoxicated when the accident occurred.


[12]   Toxicologist Dr. Shelia Arnold testified that a person will start to show

       impaired judgment and slowed information processing with a blood alcohol

       level of .04. Tr. Vol. II p. 208. She stated that Flora was impaired when his

       blood was drawn and the THC in Flora’s system was affecting his brain. Id. at

       210-15. She explained that the combination of alcohol and Midazolam can

       increase the level of a person’s impairment. Id. at 210. Dr. Arnold also stated

       that she could not determine Flora’s precise blood alcohol level at the time of

       the accident, and his BAC was possibly below .08 depending on various

       circumstances. Tr. Vol. 2, pp. 224-25.


[13]   After the State presented its evidence, Flora moved for a directed verdict on all

       three counts. The trial court denied the motion with regard to Counts I and II,


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-506 | August 28, 2020   Page 4 of 9
       but granted the motion as to Count III, Level 5 felony causing death when

       operating a motor vehicle with an ACE of .08 or more. The jury returned a

       guilty verdict on the remaining two counts.


[14]   The trial court determined that the two counts should be merged and entered a

       judgment of conviction on Count I, Level 5 felony causing death when

       operating a motor vehicle while intoxicated. Flora was ordered to serve five

       years and ten months in the Department of Correction. Flora now appeals.


                                      Discussion and Decision
[15]   Flora argues that the evidence was insufficient to prove that he was intoxicated

       and that his driving conduct resulted in Shelby’s death. Upon review of a

       challenge to the sufficiency of the evidence to support a criminal conviction, we

       respect the fact-finder’s exclusive province to weigh conflicting evidence. Miller

       v. State, 106 N.E.3d 1067, 1073 (Ind. Ct. App. 2018) (citing McHenry v. State,

       820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. We therefore neither reweigh

       the evidence nor judge the credibility of the witnesses. Id. Instead, we consider

       only the probative evidence and reasonable inferences supporting the judgment.

       Id. Appellate courts affirm the conviction unless no reasonable fact-finder could

       find the elements of the crime proven beyond a reasonable doubt. Drane v. State,

       867 N.E.2d 144, 146 (Ind. 2007) (quotation omitted).


[16]   On the date of the accident at issue in this appeal, Indiana Code section 9-30-5-

       5(a)(3) provided that “[a] person who causes the death or catastrophic injury of

       another person when operating a vehicle . . . while intoxicated . . . commits” a

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-506 | August 28, 2020   Page 5 of 9
       Level 5 felony.1 Indiana Code section 9-13-2-86 defines intoxicated in pertinent

       part as:


               under the influence of:

               (1) alcohol

               (2) a controlled substance (as defined in IC 35-48-1);

               (3) a drug other than alcohol or a controlled substance;

               (4) a substance described in IC 35-46-6-2 or IC 35-46-6-3; [or]

               (5) a combination of substances described in subdivisions (1)
               through (4) . . .

               so that there is an impaired condition of thought and action and
               the loss of normal control of a person’s faculties.


[17]   Flora claims that the toxicologist’s testimony was the only evidence of

       intoxication, which was insufficient to establish that he was impaired at the

       time of the accident. He argues that “it is purely speculation as to what Flora’s

       blood alcohol content was at the time of the accident.” Appellant’s Br. at 16.

       He also claims that it is unreasonable to conclude that his driving conduct

       caused the motorcycle crash because the “record is devoid of Flora’s driving

       conduct entirely.” Id. at 18.




       1
        The statute was amended on July 1, 2019 and the offense is now categorized as a Level 4 felony. I.C. § 9-
       30-5-5(a).

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-506 | August 28, 2020                   Page 6 of 9
[18]   The crash occurred on a sunny day with clear road conditions in the middle of

       the afternoon. From the evidence presented, it was reasonable for the jury to

       infer that no other vehicles were involved in the accident. Flora operated the

       motorcycle causing it to leave the roadway and travel twenty-five to thirty feet

       uphill on an embankment. Tr. Vol. 3, p. 73.


[19]   Based on his physical condition following the accident, his blood test results

       and the toxicologist’s testimony, it was reasonable for the jury to infer that

       Flora consumed alcohol prior to the accident. Flora’s blood draw was

       performed between three and four hours after the accident occurred. 2 Flora’s

       blood ethanol alcohol level was .105.


[20]   Dr. Arnold testified that “ethanol has a wide range of effects” on the human

       body. Tr. Vol. 2, p. 208.


               As you consume an alcoholic beverage, it is absorbed into your
               body, and distributed throughout the water in your body. So the
               more water content that you have, the more it’s able to distribute
               through your body. So men have more water than women do, so
               it’s able to distribute better in men. As it’s distributed throughout
               your body, one of the areas that it goes to is the brain, and the
               brain is where that interaction occurs. So at the low
               concentrations, you will have impaired judgment, slowed
               information processing. This will occur around a point zero, four
               (.04) to a point zero, five (.05) grams per 100 milliliters. The next
               stage that will occur, is impaired vision and auditory. So you’ll
               have blurred vision, slowed interpretation of what you actually



       2
        The accident likely occurred around 2:00 p.m. The 911 call was placed at 2:47 p.m. Flora’s blood was
       drawn after the search warrant was obtained at 5:29 p.m. Tr. Vol. 3, p. 98.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-506 | August 28, 2020                  Page 7 of 9
                see, to a reaction that you can respond to. . . . The next stage
                would be—you would start to have deficiencies in your fine
                motor skills, and your gross motor skills. At this state is where
                most people consider somebody to be drunk or intoxicated, but
                the impairment occurred at lower concentrations. So this would
                be someone stumbling around, unable to have a coordinated gait,
                stand up. And then the next stage would be decreased awareness
                of your surroundings. This is a person that is sitting there, staring
                off into space, not really aware of their surroundings, maybe in a
                stupor, or fall asleep.


       Tr. Vol. 2, pp. 208-09. Dr. Arnold also testified that delta-9 THC, a schedule

       one controlled substance, causes impairment.3 Tr. Vol. 2, p. 215.


[21]   Dr. Arnold could not testify as to Flora’s precise blood alcohol level at the time

       of the crash. And she stated that that it was possible that his blood alcohol level

       at the time of the crash was below .08 depending on various circumstances. Tr.

       Vol. 2, pp. 224-25. But “proof of intoxication may be established by showing

       impairment, and . . . does not require proof of a [BAC] level.” Ballinger v. State,

       717 N.E.2d 939, 943 (Ind. Ct. App. 1999). Moreover, circumstantial evidence is

       sufficient to prove that the defendant operated the vehicle while intoxicated.

       Jellison v. State, 656 N.E.2d 532, 535 (Ind. Ct. App. 1995).




       3
         In his brief, Flora argues that it is possible that Midazolam, an anti-anxiety medication, could have been
       given to him by medical personnel after the accident but before the blood draw. Appellant’s Br. at 15. It was
       reasonable for the jury to infer that Flora consumed alcohol and marijuana prior to the crash. But, Flora’s
       argument with regard to the Midazolam is not without merit. Therefore, we will not consider the presence of
       Midazolam in his blood in our resolution of the issue on appeal.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-506 | August 28, 2020                    Page 8 of 9
[22]   The jury reasonably inferred that Flora consumed alcohol before the accident in

       an amount that resulted in a blood alcohol level of .105 three to four hours after

       the accident occurred. Flora crashed his motorcycle while operating it on a

       roadway in the middle of the afternoon on a sunny day. There was no evidence

       that any other vehicles were involved in the accident. This evidence is sufficient

       to prove that Flora was intoxicated when the accident occurred and his

       impaired operation of the motorcycle caused the accident.4


[23]   For all of these reasons, we affirm Flora’s Level 5 felony causing death when

       operating a motor vehicle while intoxicated conviction.


[24]   Affirmed.


       Bradford, C.J., and Najam, J., concur.




       4
        For this same reason, we conclude that the trial court properly denied Flora’s request for a directed verdict
       on this charge. See Huber v. State, 805 N.E.2d 887, 890 (Ind. Ct. App. 2004) (stating that if the evidence is
       sufficient to support a conviction on appeal, then the trial court’s denial of a motion for a directed verdict
       cannot be in error).



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-506 | August 28, 2020                      Page 9 of 9
