MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Oct 30 2015, 8:35 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
                                                         Tyler G. Banks
Indianapolis, Indiana                                    Deputy Attorney General
Michael C. Borschel                                      Indianapolis, Indiana
Fishers, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Keith Wolfe,                                             October 30, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1504-CR-226
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt Eisgruber,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G01-1401-FB-3334



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-226 | October 30, 2015   Page 1 of 13
[1]   Keith Wolfe was convicted after a jury trial of operating a vehicle causing death

      with a controlled substance or its metabolite in the body1 as a Class B felony,

      possession of cocaine or a narcotic drug2 as a Class D felony, and possession of

      marijuana3 as a Class A misdemeanor and was sentenced to an aggregate ten-

      year sentence. He appeals and raises the following restated issues for our

      review:


                 I. Whether the trial court abused its discretion when it refused
                 Wolfe’s tendered jury instruction on the presumption of
                 innocence;


                 II. Whether the trial court abused its discretion when it
                 instructed the jury as to the causation element of the operating a
                 vehicle causing death with a controlled substance or its
                 metabolite in the body statute; and


                 III. Whether sufficient evidence was presented to support
                 Wolfe’s conviction for operating a vehicle causing death with a
                 controlled substance or its metabolite in the body.


[2]   We affirm.




      1
        See Ind. Code § 9-30-5-5(b)(2). We note that, effective July 1, 2014, a new version of these criminal statutes
      was enacted. Because Wolfe committed his crimes prior to July 1, 2014, we will apply the statutes in effect at
      the time he committed his crimes.
      2
          See Ind. Code § 35-48-4-6(a).
      3
          See Ind. Code § 35-48-4-11.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-226 | October 30, 2015             Page 2 of 13
                                 Facts and Procedural History
[3]   On October 2, 2012 at approximately 2:00 p.m., Maurice Barr was driving an

      empty school bus on his way to pick up students when he exited Interstate 70

      West and proceeded to the bottom of the exit ramp where he planned to turn

      left onto Rural Street. Barr made a complete stop at the red light at the bottom

      of the ramp and waited for the light to turn green. When the light turned to

      green, Barr accelerated and entered into the intersection to make a left turn. As

      Barr was about halfway through his left turn, Wolfe, driving a black Ford

      Taurus with Everett McNeal in the front passenger seat, failed to stop at the

      cross-street’s red light and crashed the Taurus into the middle of the school bus.

      At the time of impact, Wolfe was traveling fifty-one miles per hour in a thirty-

      five miles-per-hour zone and made no attempt to stop before hitting the bus.

      The force of the impact caused the Taurus to be wedged underneath the bus,

      which cause both Wolfe and McNeal to be trapped inside the Taurus.


[4]   Multiple calls were made to 911 reporting the accident, and police and

      emergency medical personnel arrived at the scene of the accident and extricated

      the occupants of the Taurus from the vehicle. Both Wolfe and McNeal were

      transported to the hospital. Indianapolis Metropolitan Police Department

      Officer Matthew Earley followed the ambulance transporting Wolfe. At the

      hospital, police attempted to identify Wolfe by searching his pockets for

      identification. Although no identification was found, Officer Earley did find

      marijuana and a hydrocodone pill in Wolfe’s pants pockets. Other officers

      searched the Taurus at the scene of the accident and found marijuana on the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-226 | October 30, 2015   Page 3 of 13
      driver’s seat, as well as “cigarellos,” which are frequently emptied and rolled-up

      with marijuana inside to smoke. Tr. at 114. Wolfe’s blood was drawn shortly

      after the accident pursuant to a search warrant, and a toxicological analysis

      determined that Wolfe had both active and inactive amounts of THC in his

      blood. Wolfe recovered from his injuries sustained in the accident, but McNeal

      died from his injuries on November 6, 2012.


[5]   On January 22, 2014, the State charged Wolfe with operating a vehicle causing

      death with a controlled substance or its metabolite in the body as a Class B

      felony, possession of cocaine or a narcotic drug as a Class D felony, and

      possession of marijuana as a Class A misdemeanor. During the jury trial,

      Wolfe tendered the following jury instruction concerning the application of the

      presumption of innocence when faced with conflicts in the evidence:

              If the evidence in this case is susceptible of two constructions or
              interpretations, each of which appears to you to be reasonable,
              and one of which points to the guilt of the Accused, and the other
              to his/her innocence, it is your duty, under the law, to adopt that
              interpretation which is consistent with the Accused’s innocence,
              and reject that which points to his/her guilt.


      Appellant’s App. at 154. The trial court refused to give the instruction because it

      was covered by the court’s existing instruction.


[6]   The State tendered the following proposed jury instruction on the definition of

      causation, which was an element of the charge of operating a vehicle causing

      death with a controlled substance or its metabolite in the body:


      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-226 | October 30, 2015   Page 4 of 13
              In order to prove the defendant caused the death of another
              person, the State is required to prove that the defendant’s
              operation of a motor vehicle was a “substantial cause” of the
              resulting death, not merely a “contributing cause.”


      Id. at 163. Wolfe objected to this instruction, arguing that the term “substantial

      cause” could cause the jury to shift the burden of proof from the State to him.

      Tr. at 316. The trial court overruled Wolfe’s objection and included the

      proposed instruction in the final jury instructions.


[7]   At the conclusion of the trial, the jury found Wolfe guilty of all three charged

      offenses. At sentencing, the trial court imposed an aggregate ten-year executed

      sentence. Wolfe now appeals.


                                     Discussion and Decision

                                  I. Denial of Jury Instruction
[8]   Wolfe argues that the trial court abused its discretion when it refused his

      tendered jury instruction on the presumption of innocence, particularly as it

      applies to conflicting evidence. He contends that the proposed instruction was

      a correct statement of the law and that the evidence presented at trial supported

      giving the instruction as there was testimony from a witness that contradicted

      other witnesses’ statements that Wolfe ran the red light. Wolfe also claims that

      the substance of his tendered instruction, particularly as it applies to conflicting

      evidence, was not covered by the other instructions given to the jury.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-226 | October 30, 2015   Page 5 of 13
[9]    Instructing the jury lies within the sole discretion of the trial court. Eberle v.

       State, 942 N.E.2d 848, 861 (Ind. Ct. App. 2011), trans. denied. We review a trial

       court’s decision to give or refuse to give an instruction for an abuse of

       discretion. Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008). An

       abuse of discretion occurs where the decision is clearly against the logic and

       effect of the facts and circumstances before the trial court. Eberle, 942 N.E.2d at

       861. In determining whether a trial court abused its discretion by declining to

       give a tendered instruction, we consider (1) whether the tendered instruction

       correctly states the law, (2) whether there was evidence presented at trial to

       support giving the instruction, and (3) whether the substance of the instruction

       was covered by other instructions that were given. Fry v. State, 25 N.E.3d 237,

       249 (Ind. Ct. App. 2015), trans. denied.


[10]   Here, Wolfe tendered the following proposed instruction to the trial court,

       which the trial court refused:


               If the evidence in this case is susceptible of two constructions or
               interpretations, each of which appears to you to be reasonable,
               and one of which points to the guilt of the Accused, and the other
               to his/her innocence, it is your duty, under the law, to adopt that
               interpretation which is consistent with the Accused’s innocence,
               and reject that which points to his/her guilt.


       Appellant’s App. at 154. In Simpson v. State, 915 N.E.2d 511 (Ind. Ct. App.

       2009), trans. denied, the defendant tendered an almost identical instruction,

       which was refused by the trial court. Id. at 518. A panel of this court affirmed

       the trial court’s refusal to give the instruction, holding that the instruction was

       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-226 | October 30, 2015   Page 6 of 13
       an incomplete statement of the previously-approved instruction in Robey v. State,

       454 N.E.2d 1221 (Ind. 1983). Simpson, 915 N.E.2d at 520. In Simpson, this

       court agreed with the State that the defendant’s tendered instruction was

       incomplete because it failed to inform the jury that it could in fact conclude that

       one of the two opposing conclusions was unreasonable. Id. Given that Wolfe

       tendered an instruction that was almost identical to the one found to be

       properly refused in Simpson because it was an incomplete and incorrect

       statement of the law, we conclude that the trial court did not abuse its discretion

       in refusing his proposed instruction. See Duren v. State, 720 N.E.2d 1198, 1205

       (Ind. Ct. App. 1999) (“When an instruction does not fully and accurately state

       the law and thus, tends to mislead or confuse the jury, the instruction is

       properly rejected.”), trans. denied.


[11]   Further, the substance of Wolfe’s proposed instruction was covered by other

       instructions given by the trial court. Instruction 15 informed the jury that if

       there was a conflict in the evidence, the jury “should reconcile the evidence on

       the theory that the defendant is innocent if you can do so.” Appellant’s App. at

       146. Instruction 7 discussed the presumption of innocence and instructed the

       jury that “a person charged with a crime is presumed to be innocent” and to

       “overcome the presumption of innocence, the State must prove [Wolfe] guilty

       of each element of the crime charged, beyond a reasonable doubt.” Id. at 138.

       Wolfe’s proposed instruction essentially set forth that conflicts in the evidence

       should be resolved in favor of the presumption of innocence. We find that

       other instructions given to the jury instructed it as to the substance contained in

       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-226 | October 30, 2015   Page 7 of 13
       Wolfe’s proposed instruction. The trial court did not abuse its discretion in

       refusing to give the instruction.


[12]   Additionally, Wolfe argues that, in light of our Supreme Court’s opinion in

       McCowan v. State, 27 N.E.3d 760 (Ind. 2015), the trial court erred in instructing

       the jury. We disagree. First, McCowan was decided after Wolfe’s trial had

       concluded. Given that ambiguity existed in the law concerning the

       presumption of innocence and the exact concepts to be included in jury

       instructions at the time of Wolfe’s trial, a trial court cannot be expected to

       anticipate future Supreme Court holdings to shape its jury instructions. Id. at

       767. Second, the proposed jury instruction that Wolfe tendered to the trial

       court did not reflect the holding in McCowan, which held that every criminal

       defendant is entitled to the following jury instruction upon request: “The

       presumption of innocence continues in favor of the defendant throughout the

       trial. You should fit the evidence to the presumption that the defendant is

       innocent if you can reasonably do so.” Id. at 762. Wolfe did not propose such

       language or request such an instruction and cannot, therefore, assert that the

       trial court’s non-compliance with McCowan was error. Lastly, the instructions

       given in the present case were practically identical to the instructions given

       under the facts of McCowan, which the Supreme Court upheld as being

       consistent with the then-existing standard enunciated in Robey. Id. at 767. The

       trial court did not abuse its discretion in refusing to give Wolfe’s proposed

       instruction.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-226 | October 30, 2015   Page 8 of 13
                               II. Jury Instruction on Causation
[13]   Wolfe contends that the trial court abused its discretion in instructing the jury

       as to causation when it overruled his objection to the State’s tendered jury

       instruction. He asserts that the State’s tendered instruction was misleading and

       confusing because it allowed the jury to find that his actions substantially

       caused the accident that resulted in McNeal’s death “at a standard less than

       needed to establish proximate cause beyond a reasonable doubt.” Appellant’s

       Br. at 17. Wolfe argues that the trial court erred in allowing the State’s

       instruction because it failed to inform the jury that proximate cause was the

       standard by which his conduct needed to be evaluated and failed to define

       proximate cause or how the term “substantial cause” incorporates the

       “principles of proximate cause.” Id. at 19.


[14]   The trial court has broad discretion regarding the manner by which it instructs

       the jury, and we generally review that discretion only for abuse. McCowan, 27

       N.E.3d at 763. In doing so, “we consider the instructions ‘as a whole and in

       reference to each other’ and do not reverse the trial court ‘for an abuse of that

       discretion unless the instructions as a whole mislead the jury as to the law in the

       case.’” Helsley v. State, 809 N.E.2d 292, 303 (Ind. 2004) (quoting Carter v. State,

       766 N.E.2d 377, 382 (Ind. 2002)).


[15]   In the present case, the State tendered the following proposed jury instruction

       on the definition of causation:




       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-226 | October 30, 2015   Page 9 of 13
               In order to prove the defendant caused the death of another
               person, the State is required to prove that the defendant’s
               operation of a motor vehicle was a “substantial cause” of the
               resulting death, not merely a “contributing cause.”


       Id. at 163. Wolfe objected, arguing that the term “substantial cause” could

       cause the jury to shift the burden of proof from the State to him. Tr. at 316.

       The trial court overruled Wolfe’s objection, and the instruction was included in

       the final jury instructions.


[16]   The causation instruction given by the trial court was a correct statement of the

       law. In many previous cases, the exact language of the instruction given by the

       trial court has been upheld as properly explaining the required proof that the

       defendant’s operation of a motor vehicle was the substantial cause of the

       resulting death and not merely a contributing cause. Abney v. State, 766 N.E.2d

       1175, 1177 (Ind. 2002); Rowe v. State, 867 N.E.2d 262, 268 (Ind. Ct. App. 2007);

       Radick v. State, 863 N.E.2d 356, 358 (Ind. Ct. App. 2007). Although Wolfe is

       correct in his assertion that it is a “well-settled rule” that the evidence must

       show that the defendant’s conduct was a “proximate cause of the victim’s injury

       or death,” our Supreme Court in Abney approved the approach that the State

       must prove the defendant’s operation of a motor vehicle was the “substantial

       cause” of the resulting death and not merely a contributing cause. Abney. 766

       N.E.2d at 1177-78. Therefore, the use of substantial cause as the level of

       causation required to be proven by the State has been upheld by both the

       Supreme Court and this court, and the instruction given by the trial court was a

       correct statement of the law.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-226 | October 30, 2015   Page 10 of 13
[17]   Wolfe’s argument that the term substantial cause was not clear or precise

       enough and, thus, allowed the jury to use its own definition of the term that

       may not have met the standard of reasonable doubt lacks merit. First, his

       contention ignores that numerous instructions informing the jury that every

       element of the crime, including causation, must be proven beyond a reasonable

       doubt. See Appellant’s App. 138-41, 145. Second, the instruction did not leave

       the jury with a complete lack of guidance as to the meaning of substantial

       cause; it instructed the jury that a substantial cause was not merely a

       contributing cause. Lastly, his argument mistakes a perceived ambiguity in the

       definition of substantial cause with a lessening of the State’s burden of proof.

       No one at trial alleged that the State’s burden of proof was less than beyond a

       reasonable doubt, and Wolfe has not presented any authority to support his

       contention. The trial court did not abuse its discretion in giving the State’s

       proposed instruction on causation.


                                       III. Sufficient Evidence
[18]   The deferential standard of review for sufficiency claims is well settled. When

       we review the sufficiency of evidence to support a conviction, we do not

       reweigh the evidence or assess the credibility of the witnesses. Cunningham v.

       State, 870 N.E.2d 552, 553 (Ind. Ct. App. 2007). We consider only the

       evidence most favorable to the verdict and the reasonable inferences that can be

       drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

       2014), trans. denied. We will not disturb the jury’s verdict if there is substantial

       evidence of probative value to support it. Id. We will affirm unless no

       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-226 | October 30, 2015   Page 11 of 13
       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt. Tooley v. State, 911 N.E.2d 721, 724-25 (Ind. Ct. App. 2009),

       trans. denied. As the reviewing court, we respect “the jury’s exclusive province

       to weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind.

       2005).


[19]   Wolfe argues that insufficient probative evidence was presented to support his

       conviction for operating a vehicle causing death with a controlled substance or

       its metabolite in the body. Specifically, he contends that the evidence was open

       to two reasonable interpretations as to whether he was “speeding and/or ran a

       red light” that resulted in the Taurus crashing into the school bus. Appellant’s

       Br. at 20. Wolfe, therefore, claims that the element of causation, whether he

       operated the vehicle in such a manner that substantially caused McNeal’s

       death, was not proven beyond a reasonable doubt.


[20]   In order to convict Wolfe, the State was required to prove beyond a reasonable

       doubt that he, while being at least twenty-one years of age, caused the death of

       McNeal when operating a vehicle with a controlled substance or its metabolite

       in his blood, in this case THC. Ind. Code § 9-30-5-5(b)(2); Appellant’s App. at

       21. Wolfe’s contention focuses on the causation element of the crime.

       Although the State is required to prove that Wolfe’s conduct was the proximate

       cause of McNeal’s death, the conduct to be looked at in the analysis is “the

       driver’s act of operating the vehicle, not the particular manner in which the

       driver operates the vehicle.” Rowe, 867 N.E.2d at 268 (citing Spaulding v. State,

       815 N.E.2d 1039, 1042 (Ind. Ct. App. 2004)).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-226 | October 30, 2015   Page 12 of 13
[21]   In the present case, considering the evidence most favorable to the verdict as we

       are required to do, the evidence presented showed that, at the time of the

       accident, Wolfe was driving his vehicle with McNeal as a passenger. As he

       approached the intersection, Wolfe was driving fifty-one miles per hour in a

       thirty-five miles-per-hour zone and instead of slowing down as he approached

       the red light, the evidence showed that he did not display any brake lights, and

       there were no skid marks at the scene. Tr. at 67, 229. Two 911 callers, an

       eyewitness at the accident scene, and the bus driver, Barr, all testified that

       Wolfe ran the red light; additionally, an expert witness testified that Wolfe was

       at fault for the accident. Id. 48-49, 64, 234; State’s Ex. 7. We, therefore,

       conclude that sufficient evidence was presented to support Wolfe’s conviction

       for operating a vehicle causing death with a controlled substance or its

       metabolite in the body as a Class B felony. Wolfe’s assertion that there was

       insufficient evidence presented to support his conviction because his witnesses

       testified that the light was green when Wolfe went through the intersection is

       merely an invitation to reweigh the evidence, which we cannot do.

       Cunningham, 870 N.E.2d at 553.


[22]   Affirmed.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-226 | October 30, 2015   Page 13 of 13
