MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Jul 25 2018, 9:33 am
court except for the purpose of establishing
                                                                       CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Rory Gallagher                                            Curtis T. Hill, Jr.
Marion County Public Defender                             Attorney General of Indiana
Indianapolis, Indiana
                                                          Ian McLean
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Candice Scarbrough,                                       July 25, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable David Hooper,
Appellee-Plaintiff.                                       Magistrate
                                                          Trial Court Cause No.
                                                          49G12-1610-CM-39839



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018                 Page 1 of 9
                                           Case Summary
[1]   Candice Scarbrough (“Scarbrough”) appeals her conviction, following a bench

      trial, for operating a vehicle while intoxicated endangering a person, a Class A

      misdemeanor.1 On appeal she raises the sole issue of whether the State

      presented sufficient evidence to support her conviction.


[2]   We affirm.



                                  Facts and Procedural History
[3]   The facts most favorable to the judgment are as follows. On October 8, 2016, at

      approximately 9:22 p.m., Officer Lance Rector (“Officer Rector”) of the

      Indianapolis Metropolitan Police Department was on patrol when he was

      dispatched to the area of South Madison Avenue to investigate a report of a

      potentially impaired driver. Appellant’s App. at 16. Officer Rector, who had

      been an Indianapolis police officer since 2004, became a drug recognition

      expert (“DRE”) through the International Association of Chiefs of Police

      (“IACP”), and in 2003, he was made an instructor for the IACP’s DRE

      program. Between 2013 and 2015, Officer Rector attended nursing school at

      Ivy Tech Community College in Columbus, Indiana, where he was educated in




      1
          Ind. Code § 9-30-5-2.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018   Page 2 of 9
      pharmacology. He also participated in continuing education on different types

      of drugs and the classifications of pharmacology.


[4]   On receiving the dispatch, Officer Rector drove to the area, where he saw a

      truck that had stopped in the middle of the traveled part of South Madison

      Avenue. Officer Rector approached the truck, which was “in gear” with the

      engine running, but it was not moving. Tr. at 6. He saw Scarbrough sitting

      behind the wheel, slumped forward onto the steering wheel. No one else was in

      the vehicle. Scarbrough did not respond to Officer Rector’s verbal commands

      and, when Officer Rector shook her, she remained unconscious and slumped to

      one side. Officer Rector placed the truck in park and turned off the engine. He

      saw that Scarbrough was not breathing normally, and “[h]er respiratory rate

      was almost non-existent, like one to two breaths per minute.” Id. at 7. Officer

      Rector administered a sternum rub to Scarbrough to rouse her; however, she

      did not respond.


[5]   Officer Rector removed Scarbrough from the truck and carried her to a grassy

      area on the side of the road. After he laid Scarbrough on the ground, Officer

      Rector “reassessed her breathing rate and at that time she was extremely

      hypoxic. Her oxygen levels were so low that her lips were starting to turn

      blue.” Id. at 8. Officer Rector opened one of Scarbrough’s eyes and found that

      her pupil was, “extremely pinpoint, which is a main indicator of a narcotic

      analgesic classification of a drug ingestion.” Id. From his education and

      training, Officer Rector recalled that narcotics are “unique because it’s [sic] the

      only drug that will cause constriction of the pupils.” Id. at 8-9. Officer Rector

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018   Page 3 of 9
      explained at trial that narcotic drugs also suppress respiration, which can cause

      respiratory arrest.


[6]   Officer Rector went to his police cruiser and obtained a nasal-mist applicator of

      Naloxone, which is the antidote for a narcotic overdose. He injected

      Scarbrough’s nostril with one nasal mist dose of Naloxone and observed her

      response. After approximately ten minutes, Scarbrough’s low rate of breathing

      had not changed. Officer Rector then asked another officer who had responded

      for his Naloxone applicator. Officer Rector explained at trial that it was not

      uncommon to administer more than one dose of Naloxone, due to the strength

      of the narcotics and the delivery of the dose through a nasal mist rather than an

      IV.


[7]   Officer Rector provided a second administration of Naloxone to Scarbrough

      and, approximately three to four minutes later, Scarbrough regained

      consciousness. She was placed on a gurney for transportation by ambulance to

      the hospital. Officer Rector testified that, upon arrival at the hospital,

      Scarbrough was sitting up in the gurney, talking, and “appeared to be normal

      and perfectly fine.” Id. at 9-10. Scarbrough was taken to the hospital’s prisoner

      holding area where Indiana’s implied-consent warning was read to her. She

      declined to participate in a chemical test.


[8]   On October 9, 2016, the State charged Scarbrough with one count of operating

      a vehicle while intoxicated endangering a person, a Class A misdemeanor.

      Following an August 30, 2017, bench trial at which Officer Rector was the sole


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018   Page 4 of 9
       witness, the court found Scarbrough guilty as charged. On December 6, the

       trial court sentenced Scarbrough to 365 days of incarceration, with five days

       executed, 360 days suspended, and 360 days of probation. This appeal ensued.



                                  Discussion and Decision
[9]    Scarbrough challenges the sufficiency of the evidence to support her conviction

       for operating a vehicle while intoxicated endangering a person, a Class A

       misdemeanor. Our standard of review of the sufficiency of the evidence is well-

       settled:


               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.


       Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.

       Moreover, “[a] conviction may be based on circumstantial evidence alone so

       long as there are reasonable inferences enabling the factfinder to find the

       defendant guilty beyond a reasonable doubt.” Lawrence v. State, 959 N.E.2d

       385, 388 (Ind. Ct. App. 2012) (citation omitted), trans. denied.


[10]   To support Scarbrough’s conviction for operating a vehicle while intoxicated as

       a Class A misdemeanor, the State must prove that Scarbrough operated a

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018   Page 5 of 9
       vehicle, while she was intoxicated, and in a manner that “endangers a person.”

       I.C. § 9-30-5-2. First, Scarbrough admits that there was “strong evidence that

       she operated the truck shortly before [Officer Rector] arrived.” Appellant’s Br.

       at 10. And the evidence indicated that she was the only person in the driver’s

       seat of a vehicle that was stopped, but still running, in the middle of the traveled

       part of a road. From that evidence, the fact-finder could reasonably infer that

       Scarbrough drove the vehicle, stopped it, and passed out in the travel lane of the

       road. That is sufficient evidence that Scarbrough “operated a vehicle.” Id.; see

       also Mordacq v. State, 585 N.E.2d 22, 24 (Ind. Ct. App. 1992) (listing cases where

       defendants have been held to be operating vehicles when found at the wheel of

       a car with its engine running, including cases where the car was: on the median

       strip of a four-lane highway, Bowlin v. State, 330 N.E.2d 353 (1975); stopped at

       an intersection, with the defendant asleep, Rose v. State, 345 N.E.2d 257 (1976);

       and, stopped in a lane of traffic on a county road, with the defendant asleep,

       Traxler v. State, 538 N.E.2d 268 (1989)).


[11]   Second, Scarbrough challenges the sufficiency of the evidence she was

       intoxicated. “Intoxicated” is defined, in relevant part, as being “under the

       influence of … a controlled substance … so that there is an impaired condition

       of thought and action and the loss of normal control of a person’s faculties.”

       I.C. § 9-13-2-86. This court has consistently held that “[p]roof of intoxication

       does not require proof of blood alcohol content; it is sufficient to show that the

       defendant was impaired.” Gatewood v. State, 921 N.E.2d 45, 48 (Ind. Ct. App.

       2010) (citing Ballinger v. State, 717 N.E.2d 939, 943 (Ind. Ct. App. 1999)), trans.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018   Page 6 of 9
       denied. And “impaired,” within the meaning of this statute, “is established by

       certain behaviors and traits evincing impairment,” such as impaired attention

       and reflexes. Curtis v. State, 937 N.E.2d 868, 873 (Ind. Ct. App. 2010) (citing

       Gatewood, 921 N.E.2d at 48). Moreover, impairment may be shown by

       reasonable inferences drawn from the evidence. Tin Thang v. State, 10 N.E.3d

       1256, 1260 (Ind. 2014).


[12]   Here, there was sufficient evidence that Scarbrough was intoxicated. Officer

       Rector, who has training and experience in drug recognition, testified that he

       found Scarbrough unconscious behind the wheel of a truck that was still

       running. On further examination, he found that Scarbrough’s respiration was

       suppressed to the point that her lips were starting to turn blue. Officer Rector

       testified that suppressed respiration is a symptom of narcotic drug use. In

       addition, he testified that he examined Scarbrough’s eyes and found that her

       pupils were constricted, which is a unique indicator of narcotic ingestion. And

       Scarbrough regained consciousness only after receiving a second dose of

       Naloxone, the antidote for a narcotic overdose. From this evidence, it was

       reasonable for the trial court to infer that Scarbrough was impaired as a result of

       the use of a narcotic drug; i.e., she was intoxicated. I.C. § 9-13-2-86.

       Scarbrough’s contentions to the contrary are merely requests that we reweigh

       the evidence, which we will not do. Clemons, 996 N.E.2d at 1285.


[13]   Finally, Scarbrough asserts that the State failed to provide sufficient evidence

       that she operated the vehicle in a manner that endangered anyone. To prove

       endangerment, the State must provide evidence beyond mere intoxication.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018   Page 7 of 9
       Sesay v. State, 5 N.E.3d 478, 484 (Ind. Ct. App. 2014), trans. denied. Rather, the

       State must prove that “the defendant was operating the vehicle in a condition or

       manner that could have endangered any person, including the public, police, or

       the defendant.” Staten v. State, 946 N.E.2d 80, 84 (Ind. Ct. App. 2011), trans.

       denied. Thus, in Labarr v. State, 36 N.E.3d 501, 503 (Ind. Ct. App. 2015), for

       example, we held that the State proved the defendant endangered himself with

       evidence that the defendant was unconscious in a minivan parked on a public

       street near a busy bar, leaving him “vulnerable to injuries resulting from traffic

       accidents, falling down, and being victimized by passersby.”


[14]   Here, the State presented sufficient evidence that Scarbrough endangered

       herself and others. She was unconscious in a vehicle that was stopped, but still

       running and in gear, in the middle of the traveled part of a public street at

       nighttime. This not only left Scarbrough vulnerable to injury from traffic

       accidents, but others as well. Of course, it also left Scarbrough vulnerable to

       “being victimized by passersby.” Id. The State presented sufficient evidence

       from which the trial court could reasonably infer that Scarbrough operated a

       vehicle in a manner that endangered herself and others.



                                                Conclusion
[15]   The State provided sufficient evidence that Scarbrough operated a vehicle while

       intoxicated and in a manner that endangered herself and others. I.C. § 9-30-5-2.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018   Page 8 of 9
[16]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2 | July 25, 2018   Page 9 of 9
