MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Nov 09 2016, 9:52 am
regarded as precedent or cited before any                               CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jeremy K. Nix                                           Gregory F. Zoeller
Matheny Hahn Denman & Nix, LLP                          Attorney General of Indiana
Huntington, Indiana
                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tonya L. Gordon,                                        November 9, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        35A02-1605-CR-1172
        v.                                              Appeal from the Huntington
                                                        Superior Court
State of Indiana,                                       The Honorable Jeffrey R.
Appellee-Plaintiff.                                     Heffelfinger, Judge
                                                        Trial Court Cause No.
                                                        35D01-1512-F4-267



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1172| November 9, 2016      Page 1 of 9
                                            Case Summary
[1]   Tonya Gordon appeals her conviction for Level 5 felony operating a vehicle

      while intoxicated causing death. We affirm.


                                                    Issues
[2]   Gordon raises two issues, which we restate as:


                      I.       whether the trial court properly rejected
                               Gordon’s proposed jury instructions regarding
                               intervening cause; and

                      II.      whether the trial court’s jury instructions
                               resulted in fundamental error.


                                                    Facts
[3]   On November 14, 2015, Gordon, her mother, Bridget Ingram, and her

      stepfather, Dewayne Ingram, attended a wedding in Fort Wayne. After the

      wedding, they started driving back to Muncie. Gordon was driving with

      Bridget in the passenger seat and Dewayne in the back seat on the passenger

      side. Soon after they started driving on I-69, Gordon lost control of the vehicle.

      The vehicle left the roadway, flipped several times, and stopped in a field.

      Joseph Didier, a college football coach, was on the team bus returning to Fort

      Wayne when he saw Gordon’s vehicle start flipping. He called 911, and first

      responders arrived at the scene quickly.


[4]   Gordon was not injured in the accident. She told the first officers on the scene

      that she lost control of the vehicle and that she did not know what caused her to


      Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1172| November 9, 2016   Page 2 of 9
      lose control. Gordon was unsteady on her feet, smelled of alcohol, slurred her

      words, and had bloodshot and glassy eyes. Gordon failed all of the field

      sobriety tests, and her BAC was 0.128. Officers found a beer can and a broken

      bottle of vodka in the vehicle. Additionally, officers found a bag of marijuana

      and a pipe in the glove box of the vehicle. Bridget had a knot on her forehead

      and neck and shoulder injuries. Dewayne suffered severe, life threatening

      injuries, including severe fractures of his C-6 and C-7 vertebrae, a spinal cord

      injury, and a brain injury. He told paramedics that he could not move or feel

      anything below his mid-chest. Ultimately, Dewayne suffered respiratory

      failure and was taken off life support. He died as a result of his injuries.


[5]   The State charged Gordon with: (1) Level 5 felony operating a vehicle while

      intoxicated causing death; (2) Level 6 felony operating a vehicle while

      intoxicated causing serious bodily injury; (3) Class A misdemeanor operating a

      vehicle while intoxicated causing endangerment; (4) Class C misdemeanor

      operating a vehicle while intoxicated; (5) Class C misdemeanor operating a

      vehicle with an alcohol concentration equivalent to at least .08 but less than .15

      grams of alcohol per 100 liters of her blood or 210 liters of her breath; (6) Class

      B misdemeanor possession of marijuana; and (7) Class C misdemeanor

      possession of paraphernalia. At the jury trial, Gordon proposed jury

      instructions regarding intervening causes and argued that the crash was caused

      by another car hitting her vehicle. The trial court rejected Gordon’s proposed

      instruction, and Gordon did not object to the trial court’s final instructions.

      The jury found Gordon guilty of all charges except the possession of marijuana


      Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1172| November 9, 2016   Page 3 of 9
      and possession of paraphernalia charges. The trial court sentenced her to six

      years with two years suspended to probation for Count 1, the Level 5 felony

      operating a vehicle while intoxicated causing death conviction. The trial court

      “incorporated” the remaining guilty verdicts into Count 1. App. Vol. II p. 203.

      Gordon now appeals.


                                                      Analysis
                                      I. Intervening Cause Instructions

[6]   Gordon argues that the trial court abused its discretion by rejecting her

      proposed final jury instructions number 4 and number 5.1 The trial court has

      broad discretion as to how to instruct the jury, and we review for an abuse of

      discretion. McCowan v. State, 27 N.E.3d 760, 763 (Ind. 2015). To determine

      whether a jury instruction was properly refused, 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.

      Id. at 763-64. In doing so, we consider the instructions as a whole and in

      reference to each other, and we do not reverse the trial court unless the

      instructions as a whole mislead the jury as to the law in the case. Id.




      1
        Gordon also mentions her proposed final instruction number 3, but she notes that the trial court’s final
      instruction number 9 incorporated the language of her proposed instruction. Consequently, we do not
      address her proposed final instruction number 3.

      Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1172| November 9, 2016              Page 4 of 9
[7]   Gordon’s proposed final instruction number 4 provided: “An intervening cause

      is an independent force that breaks the causal connection between the actions of

      the Defendant and the injury. To qualify as an intervening cause, death must

      be due to an independent event in which the Defendant did not participate and

      in which the Defendant could not foresee.” App. Vol. II p. 163. Gordon’s

      proposed final instruction number 5 provided: “In analyzing criminal

      causation, the term ‘intervening cause’ is used to describe a second event that is

      so extraordinary that it is unfair to hold the accused responsible for the actual

      result.” Id. at 164.


[8]   Gordon argues that the proposed instructions were correct statements of the

      law, were supported by the evidence of her vehicle being hit from behind, and

      were not covered by other instructions given by the trial court. The State argues

      that the trial court did not abuse its discretion by denying the proposed

      instructions because the record did not support giving them. According to the

      State, there was no evidence of another vehicle hitting the rear of Gordon’s

      vehicle and causing the accident.


[9]   In support of her argument, Gordon relies on the testimony of her mother,

      Bridget. Bridget testified that Gordon lost control after they “got bumped.” Tr.

      p. 115. However, she also testified that she did not see a car hit them. Didier,

      who witnessed the car beginning to flip over, did not mention another vehicle

      being involved when he called 911. When asked at the trial whether he saw

      any other vehicles around Gordon’s vehicle, he responded that he “couldn’t

      tell.” Id. at 123. When officers arrived at the scene, Gordon never mentioned

      Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1172| November 9, 2016   Page 5 of 9
       being hit by another vehicle. In fact, she told officers that she had lost control

       of the vehicle and that she did not know what caused her to lose control.

       Sergeant Alan Foster of the Huntington City Police Department testified that, if

       another vehicle had been involved, they would have found two damaged

       vehicles at the scene. Officer Robert James of the Markle Police Department

       testified that Gordon’s vehicle did not have damage to the rear bumper, and the

       photographs of Gordon’s vehicle are consistent with that testimony. There was

       simply no evidence of another vehicle striking Gordon’s vehicle and causing the

       accident. Consequently, Gordon’s proposed jury instructions regarding

       intervening cause were not supported by the evidence, and the trial court

       properly rejected them. See, e.g., Lampkins v. State, 778 N.E.2d 1248, 1253 (Ind.

       2002) (holding that the trial court did not abuse it discretion by rejecting the

       defendant’s tendered self-defense instructions where there was no evidence to

       demonstrate that the defendant acted in self-defense).


                                          II. Fundamental Error

[10]   Gordon argues that the instructions given by the trial court resulted in

       fundamental error. According to Gordon, final instruction number 9 and final

       instruction number 10 contradicted each other. Final instruction number 9

       provided:


               Causing death requires proof that the Defendant’s operation of a
               motor vehicle was a substantial cause of the resulting death, not a
               mere contributing cause. The State must prove the Defendant’s
               conduct was a proximate cause of the victim’s injury or death.
               Conduct, in this context, is taken to mean the driver’s act of

       Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1172| November 9, 2016   Page 6 of 9
               operating the vehicle not any particular way in which the driver
               operates the vehicle.


       App. Vol. II p. 174. Final instruction number 10 provided: “‘Cause of death’ is

       that event which initiates a chain of events, however short or protracted, that

       results in the death of an individual.” Id. at 175. Gordon argues that final

       instruction number 10 is an inaccurate statement of the law because it did not

       mention intervening causes. Gordon also argues that the two instructions

       conflict because “Instruction No. 9 required the State to prove Gordon’s

       operation of a motor vehicle was a substantial cause of the resulting death, only

       to provide in the very next instruction that Gordon’s operation of a motor

       vehicle only need to initiate a chain of events, however short or protracted, that

       results in death.” Appellant’s Br. p. 13. Gordon concedes that she did not

       object to the trial court’s final instructions.


[11]   Where, as here, the defendant failed to preserve an alleged instructional defect,

       reversal is warranted only in instances of fundamental error. Pattison v. State, 54

       N.E.3d 361, 365 (Ind. 2016). “Error is fundamental if it is ‘a substantial blatant

       violation of basic principles’ and where, if not corrected, it would deny a

       defendant fundamental due process.” Id. (quoting Wright v. State, 730 N.E.2d

       713, 716 (Ind. 2000)). This exception to the general rule requiring a

       contemporaneous objection is narrow, providing relief only in “egregious

       circumstances” that made a fair trial impossible. Id.


[12]   Indiana Code Section 9-30-5-5(a) provides: “A person who causes the death of

       another person when operating a vehicle . . . while intoxicated . . . commits a
       Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1172| November 9, 2016   Page 7 of 9
       Level 5 felony.” A conviction for operating while intoxicated causing death

       requires proof that the defendant’s operation of a motor vehicle while

       intoxicated was a “substantial cause,” and not merely a “contributing cause” of

       the resulting death. Abney v. State, 858 N.E.2d 226, 228 (Ind. Ct. App. 2006).

       The well-settled rule is that the State must prove the defendant’s conduct was

       the proximate cause of the victim’s injury or death. Id. But “conduct,” in this

       context, means the driver’s act of operating the vehicle, not the particular

       manner in which the driver operates the vehicle. Rowe v. State, 867 N.E.2d 262,

       268 (Ind. Ct. App. 2007) (citing Spaulding v. State, 815 N.E.2d 1039, 1042 (Ind.

       Ct. App. 2004)).


[13]   Final instruction number 9 was a correct statement of the law, which Gordon

       concedes. Final instruction number 10, which defined cause of death, does not

       contradict final instruction number 9. Rather, final instruction number 9 clearly

       required the defendant’s operation of the vehicle to be a substantial cause of the

       victim’s death, and final instruction number 10 defines cause of death as the

       event that initiates the chain of events. Reading the instructions as a whole, the

       State was required to demonstrate both that the defendant’s actions were a

       substantial cause of the victim’s death and that the defendant’s actions initiated

       the chain of events leading to the victim’s death. We find no error in the

       instructions.


[14]   Moreover, even if the instructions are contradictory, we find no fundamental

       error. The jury was clearly instructed that the State was required to prove

       Gordon’s conduct was a substantial cause of Dewayne’s death. There was no

       Court of Appeals of Indiana | Memorandum Decision 35A02-1605-CR-1172| November 9, 2016   Page 8 of 9
       evidence of another vehicle causing the crash. The State presented evidence

       that Dewayne’s spinal cord injuries were caused by the crash and resulted in

       respiratory failure and ultimately resulted in him being removed from life

       support. The jury instructions did not cause a substantial blatant violation of

       basic principles that denied Gordon fundamental due process.


                                                Conclusion
[15]   The trial court did not abuse its discretion by rejecting Gordon’s tendered

       instructions, and the trial court’s instructions did not result in fundamental

       error. We affirm.


[16]   Affirmed.


       Riley, J., and Bailey, J., concur.




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