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                MEMORANDUM DECISION - NOT FOR PUBLICATION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.




                                             2
       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


                                             3
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.
                                                   4
       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


                                             5
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


                                             6
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




                                               7
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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