FOR PUBLICATION




ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

MARK SMALL                                     GREGORY F. ZOELLER
Indianapolis, Indiana                          Attorney General of Indiana

                                               RYAN D. JOHANNINGSMEIER
                                               Deputy Attorney General
                                               Indianapolis, Indiana

                                                                             FILED
                              IN THE                                     Jan 19 2012, 9:35 am

                    COURT OF APPEALS OF INDIANA                                  CLERK
                                                                               of the supreme court,
                                                                               court of appeals and
                                                                                      tax court




TOMMY D. ALFREY,                               )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )       No. 54A01-1104-CR-169
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                  APPEAL FROM MONTGOMERY CIRCUIT COURT
                          The Honorable Harry A. Siamas, Judge
           Cause Nos. 54C01-0803-FC-49, 54C01-1002-FB-19, 54C01-1008-FD-85



                                    January 19, 2012


                              OPINION - FOR PUBLICATION


BRADFORD, Judge
      Following a jury trial, Appellant-Defendant Tommy Alfrey appeals following his

convictions, in Cause Number 54C01-1002-FB-19 (“Cause No. 19”) for Class D felony

Residential Entry,1 Class D felony Theft,2 and Class A misdemeanor Trespass;3 his

convictions in Cause Number 54C01-1008-FD-85 (“Cause No. 85”) for Class D felony

Escape,4 and Class D felony Residential Entry; 5 and the revocation of his probation in

Cause Number 54C01-0803-FC-49 (“Cause No. 49”). Upon appeal, Alfrey claims that

the trial court’s jury instructions regarding the defense of intoxication constituted

fundamental error, and that there was insufficient evidence to support his convictions or

his probation revocation. We affirm.

                          FACTS AND PROCEDURAL HISTORY

      Alfrey, who suffers from multiple health problems, has had prescriptions for

Oxycontin and Oxycodone since approximately 1999. On June 3, 2009, Alfrey met with

radiation oncologist Dr. Mary Rhees, regarding what was believed to be cancer in his

pelvis. Dr. Rhees increased Alfrey’s doses of Oxycontin and Oxycodone for purposes of

pain management.

                                            Cause No. 49

      On September 28, 2009, Alfrey was convicted, pursuant to a plea agreement, of

Class D felony Attempted Acquisition of a Controlled Substance in Cause No. 49. The


      1
          Ind. Code § 35-43-2-1.5 (2009).
      2
          Ind. Code § 35-43-4-2 (2009).
      3
          Ind. Code § 35-43-2-2 (2009).
      4
          Ind. Code § 35-44-3-5 (2010).
      5
          Ind. Code § 35-43-2-1.5


                                                 2
trial court sentenced him to serve eighteen months in the Department of Correction, all

of it suspended to probation.

                                     Cause No. 19

       At approximately 9:00 a.m. on February 2, 2010, Alfrey walked into Betty

Munro’s Crawfordsville store acting in an unusual manner. Munro, who knew Alfrey,

claimed he was not acting like himself: he could hardly stand up; fell asleep at her

counter; and did not make much sense when he spoke. Munro agreed to drive Alfrey to

his daughter’s house. After stopping at various places at Alfrey’s request, Munro drove

Alfrey to a home on East State Road 32 where his deceased parents had once lived.

       Upon arriving at the home, Alfrey indicated that a truck in the driveway was his

and stepped out of Munro’s vehicle. Alfrey attempted to step into the truck. Shortly

thereafter, authorities received reports that Alfrey had entered the home uninvited. Upon

responding, Montgomery County Sheriff’s Deputy David Johnson found Alfrey just

outside the residence. Deputy Johnson drove Alfrey, who seemed a bit confused at the

time, to his actual Crawfordsville residence, which Alfrey recognized.

       At approximately 11:00 or 11:30 that morning, Donald Cobbe heard a loud crash

in his Crawfordsville apartment. Upon investigating, Cobbe discovered Alfrey lying on

the floor and saying that he lived there. Cobbe told Alfrey approximately three to four

times that Alfrey did not live there. Alfrey stood up and walked into Cobbe’s living

room. Cobbe was able to talk Alfrey, who was not violent, into leaving his apartment

after approximately fifteen to twenty minutes. At the time, Alfrey, who had slurred

speech and seemed incoherent, was looking for his keys.

                                            3
       Upon leaving Cobbe’s apartment, Alfrey walked through an adjacent alleyway to

a maroon Chevrolet S-10 truck parked nearby. The truck belonged to Robert Woodall,

who had not locked it that day. According to Cobbe, Alfrey opened the truck’s doors

and looked under the seats for approximately five to ten minutes. Alfrey subsequently

left the truck with its doors open. Shortly thereafter, Cobbe left his apartment, locking

his door as he left.

       At approximately 2:00 p.m. that afternoon, Woodall discovered his truck with its

doors open and three packs of Marlboro cigarettes missing from inside. Woodall, who

knew Alfrey, had not given him permission to look inside his truck that day.

       Shortly after 2:00 p.m., Cobbe returned to his apartment to find his front door had

been kicked in. There was a footprint on the outside of the door, the door was open

about an inch and a half, and the frame and door jamb were split, leaving splinters on the

floor. Cobbe discovered his garbage can had been knocked over, and garbage was all

over his floor. Cobbe’s kitchen cabinets, freezer, and refrigerator were open. A package

of vanilla pudding was missing from his refrigerator. Earlier that day, a neighbor had

seen a man wearing the clothes Alfrey was described to be wearing forcing Cobbe’s

door open.

       Crawfordsville Police Officer Amy Clark responded to the scene. While Officer

Clark was speaking to Cobbe about the incident, Alfrey walked by. Cobbe identified

Alfrey as the person who had been inside his apartment earlier that morning. Officer

Clark detained Alfrey. A subsequent pat down yielded a package of pudding which was

cold to the touch. Cobbe later identified the pudding as his.

                                             4
       On February 8, 2010, the State charged Alfrey with Class B felony burglary

(Count I), two counts of Class D felony theft (Counts II and III),6 Class A misdemeanor

trespass (Count IV), and Class D felony residential entry (Count V).7 The State also

filed a petition to revoke or modify Alfrey’s probation in Cause No. 49. On March 12,

2010, the trial court ordered Alfrey to home detention in Cause No. 49, with the

condition that he leave his home only for specified reasons, including to obtain medical

care, apply for benefits, or work.

       Alfrey continued to seek medical care from Dr. Rhees through July 19, 2010. At

one point he was taking four different types of pain medications, as well as Xanax for

anxiety.

                                             Cause No. 85

       At approximately 9:30 to 10:30 a.m. the morning of August 3, 2010, Alfrey’s

landlord observed him fixing a mower in the back of his truck. The landlord, who spoke

with Alfrey briefly, did not observe anything unusual about Alfrey. At approximately

11:00 to 11:30 a.m. that day, Joyce Burchett was at her home in Crawfordsville when,

upon walking into her kitchen, she observed Alfrey inside her home. Burchett did not

hear a knock at her door, and she had not invited Alfrey to enter the home. Alfrey, who

was wearing a home detention monitoring bracelet on his ankle, mumbled something

about flowers. Burchett told him to leave, and Alfrey left the home.



       6
          Alfrey was charged in Count II with theft of the pudding and in Count III with theft of the
cigarettes.
       7
           Ultimately, Count V was dismissed at trial.


                                                     5
       Investigating officers found Alfrey at his apartment. When informed by officers

that he had entered a home without permission, Alfrey turned and looked at Burchett’s

house. Alfrey claimed that his landlord had asked him to do some work at Burchett’s

home and that he entered her home out of confusion. Alfrey’s landlord claimed he had

not asked Alfrey to work at Burchett’s home that morning. On August 4, 2010, the State

charged Alfrey with Class D felony escape (Count I) and Class D felony residential

entry (Count II).

                                 Cause Nos. 19 and 85

       During a consolidated trial in Cause Nos. 19 and 85, Alfrey testified that he knew

he was taking the medications at issue and had done so voluntarily. Alfrey also testified

that he knew, from conversations with his doctors and pharmacists, that the medications

could make him impaired or intoxicated. At the close of evidence, the trial court

submitted jury instructions, consistent with statutory language, indicating that

intoxication was not a defense and could not alter mens rea unless it occurred (1)

without consent or (2) without knowledge of intoxicating effect. The trial court rejected

Alfrey’s proffered instruction indicating that intoxication could be considered to negate

specific intent.

       The jury subsequently found Alfrey guilty, in Cause No. 19, of Class D felony

residential entry, a lesser included offense of the burglary alleged in Count I; Class D




                                            6
felony theft in Count II;8 and Class A misdemeanor trespass in Count IV. The jury

found Alfrey guilty of both Counts I and II as charged in Cause No. 85.

                                    Cause Nos. 19, 49, and 85

        On April 12, 2011, the trial court, which had entered judgment of conviction

pursuant to the guilty verdicts, amended its judgment to reflect that Alfrey had violated

the terms of his probation in Cause No. 49 by committing the offenses in Cause Nos. 19

and 85. The trial court revoked Alfrey’s probation and ordered that he serve the balance

of his eighteen-month sentence in the Department of Correction, which by that point

amounted to time served.

        The trial court sentenced Alfrey, in Cause No. 19, to concurrent executed

sentences of eighteen months in the Department of Correction on Count I; eighteen

months on Count II; and one year in jail on Count IV.9 In Cause No. 85, the trial court

sentenced Alfrey to two concurrent sentences of eighteen months in the Department of

Correction, with six months executed and one year suspended to probation. The trial

court further ordered that the aggregate sentences in Cause Nos. 19 and 85 run

consecutive to one another and consecutive to the sentence imposed following

revocation of probation in Cause No. 49. This appeal follows.




        8
          Alfrey was found guilty of theft of the pudding (Count II), and he was acquitted of theft of the
cigarettes (Count III).
        9
          In its judgment of conviction, it appears that the trial court mistakenly deemed Count IV “theft”
rather than “trespass” as charged.


                                                    7
                             DISCUSSION AND DECISION

                                 I.     Jury Instructions

         Upon appeal, Alfrey first claims that the trial court’s jury instruction regarding

the defense of intoxication constituted fundamental error. Alfrey argues that the defense

of intoxication “has its roots in drunkenness” and thus does not apply to prescription

medications such as his, which were taken for medical purposes. Appellant’s Br. p. 8.

Alfrey does not offer authority for his position or dispute that the jury instructions

mirrored Indiana law.

         “‘The purpose of an instruction is to inform the jury of the law applicable to the

facts without misleading the jury and to enable it to comprehend the case clearly and

arrive at a just, fair, and correct verdict.’” Davidson v. State, 849 N.E.2d 591, 593 (Ind.

2006) (quoting Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind. 2003)). Instruction of

the jury is generally within the discretion of the trial court and is reviewed only for an

abuse of that discretion. Overstreet, 783 N.E.2d at 1163-64. A trial court erroneously

refuses a tendered instruction if: (1) the instruction correctly states the law; (2) evidence

supports the instruction, and (3) no other instructions cover the substance of the tendered

instruction. Davidson, 849 N.E.2d at 593. In assessing claims of fundamental error, we

look at the jury instructions as a whole to determine whether an error exists which

constitutes a clearly blatant violation of basic and elementary principles, where the harm

or potential for harm is substantial, and where the resulting error denies the defendant

fundamental due process. See Munford v. State, 923 N.E.2d 11, 13-14 (Ind. Ct. App.

2010).

                                              8
      Indiana Code section 35-41-2-5 (2009) prohibits, in general terms, the use of

intoxication as a defense: “Intoxication is not a defense in a prosecution for an offense

and may not be taken into consideration in determining the existence of a mental state

that is an element of the offense unless the defendant meets the requirements of IC 35-

41-3-5.”

      Indiana Code section 35-41-3-5 establishes the only circumstances under which

intoxication may be used as a defense: “It is a defense that the person who engaged in

the prohibited conduct did so while he was intoxicated, only if the intoxication resulted

from the introduction of a substance into his body: (1) without his consent; or (2) when

he did not know that the substance might cause intoxication.”

      Instruction 7 of the trial court’s jury instructions informed the jury, consistent

with section 35-41-2-5, as follows: “Voluntary intoxication is not a defense to a charge

of burglary, theft, trespass, residential entry, or escape. You may not take voluntary

intoxication into consideration in determining whether the Defendant acted intentionally

or knowingly as alleged in the informations.” Appellant’s App. p. 183.

      Instruction 8 instructed the jury, consistent with section 35-41-3-5, about the

defense of involuntary intoxication:

      It is a defense that the person who engaged in the prohibited conduct did so
      while he was intoxicated, only if the intoxication resulted from the
      introduction of a substance into his body:
              1. Without his consent; or
              2. When he did not know that the substance might cause
      intoxication.




                                            9
       Involuntary intoxication is a defense to the crime charged if the intoxication
       rises to the level that the Defendant was unable to appreciate the
       wrongfulness of the conduct at the time of the offense.

Appellant’s App. p. 184.

       Alfrey does not dispute that the trial court’s instructions were consistent with the

law. Alfrey instead argues that they are an incomplete statement of the law. In Alfrey’s

view, the jury instructions and statutes they follow do not contemplate cases such as his,

where an individual is taking prescription drugs for lawful, therapeutic, non-recreational

purposes.    Even assuming that Alfrey’s use of the drugs at issue was entirely as

prescribed, we cannot agree. As the Davidson court observed, the Indiana General

Assembly has declared that intoxication is not a defense, with only the two narrow

exceptions outlined in section 35-41-3-5. Davidson, 849 N.E.2d at 594. Alfrey would

have us carve out a third exception. We will not do so in the face of clear legislative and

judicial authority to the contrary.

       To the extent Alfrey suggests that such statutory construction criminalizes wholly

involuntary conduct on his part, the Davidson court has clearly rejected the conflation of

voluntariness and intoxication. Id. at 594 (“Conflating these two concepts would lead

inexorably to a result in apparent conflict with legislative policy.”). In any event, Alfrey,

who testified that he took the medications consensually and with full awareness of their

intoxicating effect, concedes that he took them voluntarily. Intoxication, if voluntary,

supplies the general requirement of a voluntary act. Sanchez v. State, 749 N.E.2d 509,

517 (Ind. 2001). As for Alfrey’s contention that his federal due process rights have been

violated, the United States Supreme Court has rejected this claim. See Sanchez, 749

                                             10
N.E.2d at 512 (citing Montana v. Egelhoff, 518 U.S. 37, 56 (1996) for proposition that a

state may prohibit a criminal defendant from offering evidence of voluntary intoxication

to negate the requisite mens rea without violating the Due Process Clause of the

Fourteenth Amendment). We find no error, fundamental or otherwise.

                           II.          Sufficiency of the Evidence

      Alfrey additionally challenges the sufficiency of the evidence to support his

convictions in light of what he claims is his lacking mens rea due to his prescription

medication intoxication. We have already concluded, based upon the rule announced in

Indiana Code section 35-41-2-5, that intoxication may not erase mens rea. Alfrey does

not claim that the narrow exceptions to this rule under section 35-41-3-5 apply. In any

event, Alfrey’s testimony that he consensually took medications he knew could cause

intoxication establishes sufficient evidence to negate the applicability of these narrow

exceptions. We must conclude that Alfrey’s sufficiency challenges lack merit.

                                 III.     Probation Revocation

      Alfrey finally challenges the revocation of his probation. The petition to revoke

probation in Cause No. 49 alleged, as one of its grounds, the charges in Cause No. 19.

Having rejected Alfrey’s challenge to his convictions in Cause No. 19, we similarly reject

his challenge to his probation revocation on the basis that those charges or convictions

are somehow faulty.

      The judgment of the trial court is affirmed.

KIRSCH, J., and BARNES, J., concur.



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