Jeffrey B. Flora v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 28 2020, 8:09 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ronald J. Moore Curtis T. Hill, Jr.
The Moore Law Firm, LLC Attorney General of Indiana
Richmond, Indiana
Myriam Serrano
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffrey B. Flora, August 28, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-506
v. Appeal from the Wayne Superior
Court
State of Indiana, The Honorable Darrin M.
Appellee-Plaintiff. Dolehanty, Judge
Trial Court Cause No.
89D03-1907-F5-81
Mathias, Judge.
[1] Jeffrey Flora (“Flora”) was convicted in Wayne Superior Court of Level 5
felony causing death when operating a motor vehicle while intoxicated. Flora
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appeals his conviction and argues that the evidence is insufficient to prove that
he was intoxicated.
[2] We affirm.
Facts and Procedural History
[3] On February 9, 2019, Flora and his girlfriend, Shelby Masters (“Shelby”) were
planning to travel to Muncie, Indiana with Shelby’s mother, Sandra Morris
(“Morris”) and Morris’s friend. Initially, Morris intended to pick up Flora and
Shelby at Shelby’s home at 1:30 p.m., then the group would travel to Muncie.
Later, the plan changed. Flora and Shelby decided they would meet Morris and
her friend at Morris’s home, which was approximately ten minutes from
Shelby’s home. Morris still expected them to arrive around 1:30 p.m.
[4] Around 2:00 p.m., neighbors saw Flora and Shelby leaving Shelby’s home on
Flora’s Harley Davidson motorcycle. One neighbor was surprised that the
couple was traveling on a motorcycle because even though it was a sunny day,
it was cold. The witnesses reported that Flora was driving the motorcycle and
Shelby was riding behind him.
[5] Morris became concerned when Shelby and Flora did not arrive at her home as
planned. She called their cellphones, but neither answered the call. Morris
thought maybe they had trouble with the motorcycle. She and her friend began
driving the route to Shelby’s house to look for them.
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[6] Approximately two miles from Shelby’s home, Morris and her friend noticed
the sun reflecting off the handlebars of a motorcycle. The motorcycle was lying
off the road on an embankment near a bridge, which crossed a creek. From
their position on the road, they could not see Flora or Shelby. Morris and her
friend exited their vehicle and called 911 to report the crash. The 911 call was
reported at 2:47 p.m.
[7] Morris walked toward the motorcycle and saw that it was “clear up on the
embankment, as far as it could go.” Tr. Vol. III, p. 117. Then she noticed that
Flora and Shelby were lying in the creek approximately 15 to 20 feet away.
Morris yelled their names, but they were unconscious and did not respond.
[8] Flora was lying on his back. He was breathing and moaning. Shelby was lying
face down and her torso was partially lying on top of Flora. Morris could not
feel Shelby’s pulse. Morris, her friend, and an individual who stopped to help,
carefully rolled Shelby off of Flora and onto her back. They performed CPR on
Shelby before the paramedics and law enforcement arrived approximately ten
minutes after they placed the 911 call.
[9] Shelby suffered a cervical fracture to her neck upon impact with the ground and
died immediately as a result of blunt force trauma. She was pronounced dead at
the scene of the accident. Flora was transported to a hospital via helicopter.
[10] Wayne County Sheriff’s Department investigator Seth Biava (“Officer Biava”)
was informed that a baggie containing over five grams of marijuana was found
near the scene of the accident. He obtained a search warrant for a blood draw,
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and Flora’s blood was drawn at approximately 5:30 p.m. Flora’s blood ethanol
level was .105. He also testified positive for the presence of delta-9 carboxy
THC and delta 9 THC, and Midazolam, a benzodiazepine. Tr. Vol. II, p. 204;
Ex. Vol., State’s Ex. 32.
[11] On July 10, 2019, Flora was charged with Level 5 felony causing death when
operating a motor vehicle while intoxicated, Level 5 felony causing death when
operating a motor vehicle with a schedule I or II controlled substance in the
blood, and Level 5 felony causing death when operating a motor vehicle with
an ACE of .08 or more. Flora’s jury trial commenced on January 22, 2020.
Flora presented two defenses: that Shelby was driving the motorcycle and that
he was not intoxicated when the accident occurred.
[12] Toxicologist Dr. Shelia Arnold testified that a person will start to show
impaired judgment and slowed information processing with a blood alcohol
level of .04. Tr. Vol. II p. 208. She stated that Flora was impaired when his
blood was drawn and the THC in Flora’s system was affecting his brain. Id. at
210-15. She explained that the combination of alcohol and Midazolam can
increase the level of a person’s impairment. Id. at 210. Dr. Arnold also stated
that she could not determine Flora’s precise blood alcohol level at the time of
the accident, and his BAC was possibly below .08 depending on various
circumstances. Tr. Vol. 2, pp. 224-25.
[13] After the State presented its evidence, Flora moved for a directed verdict on all
three counts. The trial court denied the motion with regard to Counts I and II,
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but granted the motion as to Count III, Level 5 felony causing death when
operating a motor vehicle with an ACE of .08 or more. The jury returned a
guilty verdict on the remaining two counts.
[14] The trial court determined that the two counts should be merged and entered a
judgment of conviction on Count I, Level 5 felony causing death when
operating a motor vehicle while intoxicated. Flora was ordered to serve five
years and ten months in the Department of Correction. Flora now appeals.
Discussion and Decision
[15] Flora argues that the evidence was insufficient to prove that he was intoxicated
and that his driving conduct resulted in Shelby’s death. Upon review of a
challenge to the sufficiency of the evidence to support a criminal conviction, we
respect the fact-finder’s exclusive province to weigh conflicting evidence. Miller
v. State, 106 N.E.3d 1067, 1073 (Ind. Ct. App. 2018) (citing McHenry v. State,
820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. We therefore neither reweigh
the evidence nor judge the credibility of the witnesses. Id. Instead, we consider
only the probative evidence and reasonable inferences supporting the judgment.
Id. Appellate courts affirm the conviction unless no reasonable fact-finder could
find the elements of the crime proven beyond a reasonable doubt. Drane v. State,
867 N.E.2d 144, 146 (Ind. 2007) (quotation omitted).
[16] On the date of the accident at issue in this appeal, Indiana Code section 9-30-5-
5(a)(3) provided that “[a] person who causes the death or catastrophic injury of
another person when operating a vehicle . . . while intoxicated . . . commits” a
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Level 5 felony.1 Indiana Code section 9-13-2-86 defines intoxicated in pertinent
part as:
under the influence of:
(1) alcohol
(2) a controlled substance (as defined in IC 35-48-1);
(3) a drug other than alcohol or a controlled substance;
(4) a substance described in IC 35-46-6-2 or IC 35-46-6-3; [or]
(5) a combination of substances described in subdivisions (1)
through (4) . . .
so that there is an impaired condition of thought and action and
the loss of normal control of a person’s faculties.
[17] Flora claims that the toxicologist’s testimony was the only evidence of
intoxication, which was insufficient to establish that he was impaired at the
time of the accident. He argues that “it is purely speculation as to what Flora’s
blood alcohol content was at the time of the accident.” Appellant’s Br. at 16.
He also claims that it is unreasonable to conclude that his driving conduct
caused the motorcycle crash because the “record is devoid of Flora’s driving
conduct entirely.” Id. at 18.
1
The statute was amended on July 1, 2019 and the offense is now categorized as a Level 4 felony. I.C. § 9-
30-5-5(a).
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[18] The crash occurred on a sunny day with clear road conditions in the middle of
the afternoon. From the evidence presented, it was reasonable for the jury to
infer that no other vehicles were involved in the accident. Flora operated the
motorcycle causing it to leave the roadway and travel twenty-five to thirty feet
uphill on an embankment. Tr. Vol. 3, p. 73.
[19] Based on his physical condition following the accident, his blood test results
and the toxicologist’s testimony, it was reasonable for the jury to infer that
Flora consumed alcohol prior to the accident. Flora’s blood draw was
performed between three and four hours after the accident occurred. 2 Flora’s
blood ethanol alcohol level was .105.
[20] Dr. Arnold testified that “ethanol has a wide range of effects” on the human
body. Tr. Vol. 2, p. 208.
As you consume an alcoholic beverage, it is absorbed into your
body, and distributed throughout the water in your body. So the
more water content that you have, the more it’s able to distribute
through your body. So men have more water than women do, so
it’s able to distribute better in men. As it’s distributed throughout
your body, one of the areas that it goes to is the brain, and the
brain is where that interaction occurs. So at the low
concentrations, you will have impaired judgment, slowed
information processing. This will occur around a point zero, four
(.04) to a point zero, five (.05) grams per 100 milliliters. The next
stage that will occur, is impaired vision and auditory. So you’ll
have blurred vision, slowed interpretation of what you actually
2
The accident likely occurred around 2:00 p.m. The 911 call was placed at 2:47 p.m. Flora’s blood was
drawn after the search warrant was obtained at 5:29 p.m. Tr. Vol. 3, p. 98.
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see, to a reaction that you can respond to. . . . The next stage
would be—you would start to have deficiencies in your fine
motor skills, and your gross motor skills. At this state is where
most people consider somebody to be drunk or intoxicated, but
the impairment occurred at lower concentrations. So this would
be someone stumbling around, unable to have a coordinated gait,
stand up. And then the next stage would be decreased awareness
of your surroundings. This is a person that is sitting there, staring
off into space, not really aware of their surroundings, maybe in a
stupor, or fall asleep.
Tr. Vol. 2, pp. 208-09. Dr. Arnold also testified that delta-9 THC, a schedule
one controlled substance, causes impairment.3 Tr. Vol. 2, p. 215.
[21] Dr. Arnold could not testify as to Flora’s precise blood alcohol level at the time
of the crash. And she stated that that it was possible that his blood alcohol level
at the time of the crash was below .08 depending on various circumstances. Tr.
Vol. 2, pp. 224-25. But “proof of intoxication may be established by showing
impairment, and . . . does not require proof of a [BAC] level.” Ballinger v. State,
717 N.E.2d 939, 943 (Ind. Ct. App. 1999). Moreover, circumstantial evidence is
sufficient to prove that the defendant operated the vehicle while intoxicated.
Jellison v. State, 656 N.E.2d 532, 535 (Ind. Ct. App. 1995).
3
In his brief, Flora argues that it is possible that Midazolam, an anti-anxiety medication, could have been
given to him by medical personnel after the accident but before the blood draw. Appellant’s Br. at 15. It was
reasonable for the jury to infer that Flora consumed alcohol and marijuana prior to the crash. But, Flora’s
argument with regard to the Midazolam is not without merit. Therefore, we will not consider the presence of
Midazolam in his blood in our resolution of the issue on appeal.
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[22] The jury reasonably inferred that Flora consumed alcohol before the accident in
an amount that resulted in a blood alcohol level of .105 three to four hours after
the accident occurred. Flora crashed his motorcycle while operating it on a
roadway in the middle of the afternoon on a sunny day. There was no evidence
that any other vehicles were involved in the accident. This evidence is sufficient
to prove that Flora was intoxicated when the accident occurred and his
impaired operation of the motorcycle caused the accident.4
[23] For all of these reasons, we affirm Flora’s Level 5 felony causing death when
operating a motor vehicle while intoxicated conviction.
[24] Affirmed.
Bradford, C.J., and Najam, J., concur.
4
For this same reason, we conclude that the trial court properly denied Flora’s request for a directed verdict
on this charge. See Huber v. State, 805 N.E.2d 887, 890 (Ind. Ct. App. 2004) (stating that if the evidence is
sufficient to support a conviction on appeal, then the trial court’s denial of a motion for a directed verdict
cannot be in error).
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