MEMORANDUM DECISION
                                                                     Jan 21 2016, 8:52 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
Kimberly A. Jackson                                       Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Rodger Wilson, Jr.,                                      January 21, 2016

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         28A05-1507-CR-931
        v.                                               Appeal from the Greene Circuit
                                                         Court.
                                                         The Honorable Erik C. Allen, Judge.
State of Indiana,                                        Cause No. 28C01-1408-FC-22
Appellee-Plaintiff.




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 28A05-1507-CR-931 | January 21, 2016      Page 1 of 8
[1]   Rodger Wilson, Jr. appeals from his conviction of one count of Class C felony
                              1
      reckless homicide, contending that the evidence is insufficient. We affirm.


[2]   Early on April 30, 2014, Wilson’s wife, Leah, picked up a prescription for one-

      milligram Alprazolam tablets from Linton Family Pharmacy. Alprazolam is an

      anti-anxiety medication commonly known as Xanax, which induces sedation

      and drowsiness, slows bodily processes, including motor skills and cognitive

      function, and is capable of causing slurred speech or delayed responsiveness.

      Although it is prescribed for oral ingestion, it can be ground up and inhaled,

      causing the medication to reach the blood and brain more quickly. The

      Wilsons went to Julie Johnson’s house in Bloomfield where the Wilsons

      ground up and each inhaled approximately three Alprazolam pills. The

      Wilsons left the house in a white 2006 Ford F-150 with Wilson behind the

      wheel.


[3]   For approximately one year, Kyle Sorrenson had commuted to Bloomington

      from Elnora five or six days a week. During those trips he traveled on Indiana

      State Road 54 through Bloomfield to Indiana State Road 45, which leads

      directly into Bloomington. On April 30, 2014, he and his girlfriend left Elnora

      at approximately 11:00 a.m.




      1
       Ind. Code § 35-42-1-5 (1980) (West, Westlaw current with all 2015 Public Laws of the 2015 First Regular
      Session Of the 119th General Assembly).

      Court of Appeals of Indiana | Memorandum Decision 28A05-1507-CR-931 | January 21, 2016          Page 2 of 8
[4]   As Sorrenson was leaving Bloomfield traveling east on 54, Wilson’s vehicle

      caught up to his and began tailgating him. Sorrenson observed that as Wilson

      continued to tailgate him, Wilson was continuously on or over the center line.

      Sorrenson described seeing that Wilson “would dangerously go left of center”

      with “at least half of the truck . . . in the other lane and then basically his truck

      would float over and he would come back.” Tr. pp. 145-46. According to

      Sorrenson, this behavior continued until Wilson’s vehicle passed his on a

      straightaway on 54. Once Wilson’s vehicle passed, however, the vehicle

      continued to ride on or over the center line until the vehicle was no longer in

      sight. Sorrenson had never observed such erratic driving behavior during his

      prior commutes.


[5]   Eventually, Sorrenson stopped behind Wilson at a stoplight. When the light

      turned green, both vehicles made a left turn. Sorrenson observed that Wilson

      was on the center line or over the line almost immediately after the turn. Near

      a gas station, at least half of Wilson’s truck was left of center and almost struck

      a red truck head on. Sorrenson believed that Wilson’s truck was going to

      collide with the other truck, but observed Wilson’s truck float back over into the

      correct lane. In response to that near collision, Sorrenson slowed his vehicle to

      create distance between his and Wilson’s vehicle.


[6]   Meanwhile, long-time motorcycle enthusiast, Bob Cramer, was riding his

      Honda Gold Wing motorcycle. About two minutes up the road, at a curve in

      45, Wilson’s truck collided with Cramer’s motorcycle. Cramer had been

      driving southbound in the southbound lane, while Wilson was driving

      Court of Appeals of Indiana | Memorandum Decision 28A05-1507-CR-931 | January 21, 2016   Page 3 of 8
       northbound in the southbound lane. The collision took place in the middle of

       the southbound lane, approximately six feet away from the double yellow line.

       According to an accident reconstructionist, Wilson did not brake before the

       crash, which sent Cramer and his motorcycle into a ditch, killing him.


[7]    Witnesses at the scene described Wilson’s speech as slow and somewhat slurred

       while his movements were almost in slow motion. Wilson refused medical

       treatment, field sobriety tests, and a blood draw, claiming that he was “not

       under the privilege of anything.” Defendant’s Exhibit A.


[8]    Detective James O’Malley of the Greene County Sheriff’s Department

       responded to the scene of the accident and after speaking with Wilson, believed

       that he was under the influence of something. He obtained a search warrant for

       a blood draw which was executed in the Greene County Jail. Wilson’s blood

       tested positive for Alprazolam at a concentration of 54.8 nanograms per

       milliliter. According to forensic toxicologist Kevin Shanks, the therapeutic

       range of Alprazolam is from ten to forty nanograms per milliliter.


[9]    The State charged Wilson with Class C felony reckless homicide. The jury

       found Wilson guilty as charged, and the trial court sentenced Wilson to seven

       years, with one year suspended to probation.


[10]   Wilson appeals claiming the evidence is insufficient to support his conviction.

       Wilson argues that the State failed to prove beyond a reasonable doubt the

       following: 1) that Wilson ingested Alprazolam on the day of the collision; 2) a

       causal link between the collision and Wilson’s ingestion of prescription

       Court of Appeals of Indiana | Memorandum Decision 28A05-1507-CR-931 | January 21, 2016   Page 4 of 8
       medication; 3) driving under the influence of medication in plain, conscious,

       and unjustifiable disregard of the harm that might result; and, 4) Wilson’s

       disregard of harm involved a substantial deviation from acceptable standards of

       conduct.


[11]   In accordance with the well-settled standard of review for claims of insufficient

       evidence, we neither reweigh the evidence nor reassess the credibility of

       witnesses. Bailey v. State, 979 N.E.2d 133 (Ind. 2012). We review the evidence

       and all reasonable inferences drawn therefrom in a light most favorable to the

       conviction. Id. We will affirm the conviction if there is substantial evidence of

       probative value supporting each element of the crime from which a reasonable

       trier of fact could have found the defendant guilty beyond a reasonable doubt.

       Id.


[12]   In order to establish that Wilson committed Class C felony reckless homicide,

       the State was required to prove beyond a reasonable doubt that Wilson

       recklessly killed Cramer. Ind. Code § 35-42-1-5. The Code sets forth that a

       person engages in conduct recklessly, if the conduct involved is in plain,

       conscious, and unjustifiable disregard of the harm that might result, and the

       disregard involves a substantial deviation from acceptable standards of conduct.

       Ind. Code § 35-41-2-2(c) (West, Westlaw current with all 2015 Public Laws of

       the 2015 First Regular Session of the 119th General Assembly).


[13]   Each of Wilson’s claims are requests for this Court to reweigh the evidence or

       discredit testimony. In accordance with our standard of review, however, we


       Court of Appeals of Indiana | Memorandum Decision 28A05-1507-CR-931 | January 21, 2016   Page 5 of 8
       recite the evidence most favorable to the jury’s verdict. Jeffrey Doris, a

       pharmacist from the Linton Family Pharmacy, testified that Leah picked up a

       prescription for Alprazolam in one milligram tablets the day of the accident.

       Johnson testified that Wilson and Leah each inhaled the powder from three

       Alprazolam tablets at her house.


[14]   Wilson testified that he only takes Alprazolam at night because it makes him

       drowsy and that he would never drive if he believed the dose was impairing his

       function. Sorrenson, however, testified that he and his girlfriend observed

       Wilson’s truck initially tailgate his vehicle, continuously cross over the center

       line then gradually float back into the proper lane of travel until Wilson’s truck

       passed Sorrenson’s. Sorrenson observed Wilson’s truck dangerously cross over

       the center line and almost strike a red truck head on just prior to the accident.

       Sorrenson had traveled that same route five or six days a week for at least a year

       and had never observed such driving behavior on the winding road.


[15]   Witnesses at the scene of the crash described Wilson’s movements as being in

       slow motion and that his speech was slow, deliberate, and slurred. Detective

       O’Malley testified that he believed Wilson was under the influence of

       something because of his speech and actions. He obtained a search warrant for

       a blood draw which was executed, and the results of the test revealed that

       Wilson’s blood contained Alprazolam at a concentration of 54.8 nanograms per

       milliliter. Wilson admitted having taken two Alprazolam pills two days prior to

       the accident. By contrast, Shanks testified that the concentration of 54.8



       Court of Appeals of Indiana | Memorandum Decision 28A05-1507-CR-931 | January 21, 2016   Page 6 of 8
       nanograms per milliliter would be consistent with taking three one-milligram

       pills of Alprazolam.


[16]   In Gantt v. State, 825 N.E.2d 874, 878 (Ind. Ct. App. 2005), a panel of this court

       described the jury’s function when faced with contradictory testimony.


               When two witnesses give contradictory accounts, it is not true
               that the jury must believe one or the other. The jury may choose
               to believe neither witness, believe aspects of the testimony of
               each, or believe the testimony but also believe in a different
               interpretation of the facts than that espoused by the witnesses,
               among other possibilities.
       Thus, although Wilson has identified testimony that contradicted other

       testimony, it was the exclusive province of the jury to determine which

       evidence to believe.


[17]   Although this case involves the use of medication and not intoxication, it bears

       similarities to the facts in Nichols v. State, 591 N.E.2d 134 (Ind. 1992). Nichols’

       conviction for reckless homicide was affirmed where the evidence showed he

       was seen driving across the center line for an extended period of time, and his

       vehicle was more than just barely across the center line. There was additional

       evidence that Nichols was intoxicated at the time of the accident, which

       resulted in the victim’s death. In comparison, Wilson’s vehicle was observed

       repeatedly crossing the center line almost striking a truck prior to colliding with

       Cramer’s motorcycle in the wrong lane of travel resulting in Cramer’s death.

       Wilson was observed earlier that morning inhaling three crushed Alprazolam

       tablets, which he was aware made him drowsy, and his speech and movements


       Court of Appeals of Indiana | Memorandum Decision 28A05-1507-CR-931 | January 21, 2016   Page 7 of 8
       were slow and deliberate at the scene of the crash. There is sufficient evidence

       to support the jury’s verdict.


[18]   Judgment affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 28A05-1507-CR-931 | January 21, 2016   Page 8 of 8
