Court of Appeals of Indiana | Memorandum Decision 49A02-1504-CR-226 | October 30, 2015 Page 1 of 13

MEMORANDUM DECISION

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.

ATTORNEYS FOR APPELLANT

Ruth Johnson

Marion County Public Defender Agency

Appellate Division

Indianapolis, Indiana

Michael C. Borschel

Fishers, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Keith Wolfe,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

October 30, 2015

Court of Appeals Case No.

49A02-1504-CR-226

Appeal from the Marion Superior 

Court

The Honorable Kurt Eisgruber, 

Judge

Trial Court Cause No.

49G01-1401-FB-3334

Kirsch, Judge.
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[1] Keith Wolfe was convicted after a jury trial of operating a vehicle causing death 

with a controlled substance or its metabolite in the body1 as a Class B felony, 

possession of cocaine or a narcotic drug2 as a Class D felony, and possession of 

marijuana3 as a Class A misdemeanor and was sentenced to an aggregate tenyear sentence. He appeals and raises the following restated issues for our 

review:

I. Whether the trial court abused its discretion when it refused 

Wolfe’s tendered jury instruction on the presumption of 

innocence;

II. Whether the trial court abused its discretion when it 

instructed the jury as to the causation element of the operating a 

vehicle causing death with a controlled substance or its 

metabolite in the body statute; and

III. Whether sufficient evidence was presented to support 

Wolfe’s conviction for operating a vehicle causing death with a 

controlled substance or its metabolite in the body.

[2] We affirm.

 

1

See Ind. Code § 9-30-5-5(b)(2). We note that, effective July 1, 2014, a new version of these criminal statutes 

was enacted. Because Wolfe committed his crimes prior to July 1, 2014, we will apply the statutes in effect at 

the time he committed his crimes. 

2

See Ind. Code § 35-48-4-6(a).

3

See Ind. Code § 35-48-4-11.
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Facts and Procedural History

[3] On October 2, 2012 at approximately 2:00 p.m., Maurice Barr was driving an 

empty school bus on his way to pick up students when he exited Interstate 70 

West and proceeded to the bottom of the exit ramp where he planned to turn 

left onto Rural Street. Barr made a complete stop at the red light at the bottom 

of the ramp and waited for the light to turn green. When the light turned to 

green, Barr accelerated and entered into the intersection to make a left turn. As 

Barr was about halfway through his left turn, Wolfe, driving a black Ford 

Taurus with Everett McNeal in the front passenger seat, failed to stop at the 

cross-street’s red light and crashed the Taurus into the middle of the school bus. 

At the time of impact, Wolfe was traveling fifty-one miles per hour in a thirtyfive miles-per-hour zone and made no attempt to stop before hitting the bus. 

The force of the impact caused the Taurus to be wedged underneath the bus, 

which cause both Wolfe and McNeal to be trapped inside the Taurus.

[4] Multiple calls were made to 911 reporting the accident, and police and 

emergency medical personnel arrived at the scene of the accident and extricated 

the occupants of the Taurus from the vehicle. Both Wolfe and McNeal were 

transported to the hospital. Indianapolis Metropolitan Police Department 

Officer Matthew Earley followed the ambulance transporting Wolfe. At the 

hospital, police attempted to identify Wolfe by searching his pockets for 

identification. Although no identification was found, Officer Earley did find 

marijuana and a hydrocodone pill in Wolfe’s pants pockets. Other officers 

searched the Taurus at the scene of the accident and found marijuana on the 
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driver’s seat, as well as “cigarellos,” which are frequently emptied and rolled-up 

with marijuana inside to smoke. Tr. at 114. Wolfe’s blood was drawn shortly 

after the accident pursuant to a search warrant, and a toxicological analysis 

determined that Wolfe had both active and inactive amounts of THC in his 

blood. Wolfe recovered from his injuries sustained in the accident, but McNeal 

died from his injuries on November 6, 2012.

[5] On January 22, 2014, the State charged Wolfe with operating a vehicle causing 

death with a controlled substance or its metabolite in the body as a Class B 

felony, possession of cocaine or a narcotic drug as a Class D felony, and 

possession of marijuana as a Class A misdemeanor. During the jury trial, 

Wolfe tendered the following jury instruction concerning the application of the 

presumption of innocence when faced with conflicts in the evidence:

If the evidence in this case is susceptible of two constructions or 

interpretations, each of which appears to you to be reasonable, 

and one of which points to the guilt of the Accused, and the other 

to his/her innocence, it is your duty, under the law, to adopt that 

interpretation which is consistent with the Accused’s innocence, 

and reject that which points to his/her guilt.

Appellant’s App. at 154. The trial court refused to give the instruction because it 

was covered by the court’s existing instruction. 

[6] The State tendered the following proposed jury instruction on the definition of 

causation, which was an element of the charge of operating a vehicle causing 

death with a controlled substance or its metabolite in the body:
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In order to prove the defendant caused the death of another 

person, the State is required to prove that the defendant’s 

operation of a motor vehicle was a “substantial cause” of the 

resulting death, not merely a “contributing cause.”

Id. at 163. Wolfe objected to this instruction, arguing that the term “substantial 

cause” could cause the jury to shift the burden of proof from the State to him. 

Tr. at 316. The trial court overruled Wolfe’s objection and included the 

proposed instruction in the final jury instructions. 

[7] At the conclusion of the trial, the jury found Wolfe guilty of all three charged 

offenses. At sentencing, the trial court imposed an aggregate ten-year executed 

sentence. Wolfe now appeals.

Discussion and Decision

I. Denial of Jury Instruction

[8] Wolfe argues that the trial court abused its discretion when it refused his 

tendered jury instruction on the presumption of innocence, particularly as it 

applies to conflicting evidence. He contends that the proposed instruction was 

a correct statement of the law and that the evidence presented at trial supported 

giving the instruction as there was testimony from a witness that contradicted 

other witnesses’ statements that Wolfe ran the red light. Wolfe also claims that 

the substance of his tendered instruction, particularly as it applies to conflicting 

evidence, was not covered by the other instructions given to the jury. 
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[9] Instructing the jury lies within the sole discretion of the trial court. Eberle v. 

State, 942 N.E.2d 848, 861 (Ind. Ct. App. 2011), trans. denied. We review a trial 

court’s decision to give or refuse to give an instruction for an abuse of 

discretion. Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008). An 

abuse of discretion occurs where the decision is clearly against the logic and 

effect of the facts and circumstances before the trial court. Eberle, 942 N.E.2d at 

861. In determining whether a trial court abused its discretion by declining to 

give a tendered instruction, 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. Fry v. State, 25 N.E.3d 237, 

249 (Ind. Ct. App. 2015), trans. denied. 

[10] Here, Wolfe tendered the following proposed instruction to the trial court,

which the trial court refused:

If the evidence in this case is susceptible of two constructions or 

interpretations, each of which appears to you to be reasonable, 

and one of which points to the guilt of the Accused, and the other 

to his/her innocence, it is your duty, under the law, to adopt that 

interpretation which is consistent with the Accused’s innocence, 

and reject that which points to his/her guilt.

Appellant’s App. at 154. In Simpson v. State, 915 N.E.2d 511 (Ind. Ct. App. 

2009), trans. denied, the defendant tendered an almost identical instruction, 

which was refused by the trial court. Id. at 518. A panel of this court affirmed 

the trial court’s refusal to give the instruction, holding that the instruction was 
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an incomplete statement of the previously-approved instruction in Robey v. State, 

454 N.E.2d 1221 (Ind. 1983). Simpson, 915 N.E.2d at 520. In Simpson, this 

court agreed with the State that the defendant’s tendered instruction was 

incomplete because it failed to inform the jury that it could in fact conclude that 

one of the two opposing conclusions was unreasonable. Id. Given that Wolfe 

tendered an instruction that was almost identical to the one found to be 

properly refused in Simpson because it was an incomplete and incorrect 

statement of the law, we conclude that the trial court did not abuse its discretion 

in refusing his proposed instruction. See Duren v. State, 720 N.E.2d 1198, 1205 

(Ind. Ct. App. 1999) (“When an instruction does not fully and accurately state 

the law and thus, tends to mislead or confuse the jury, the instruction is 

properly rejected.”), trans. denied. 

[11] Further, the substance of Wolfe’s proposed instruction was covered by other 

instructions given by the trial court. Instruction 15 informed the jury that if 

there was a conflict in the evidence, the jury “should reconcile the evidence on 

the theory that the defendant is innocent if you can do so.” Appellant’s App. at 

146. Instruction 7 discussed the presumption of innocence and instructed the 

jury that “a person charged with a crime is presumed to be innocent” and to 

“overcome the presumption of innocence, the State must prove [Wolfe] guilty 

of each element of the crime charged, beyond a reasonable doubt.” Id. at 138. 

Wolfe’s proposed instruction essentially set forth that conflicts in the evidence 

should be resolved in favor of the presumption of innocence. We find that 

other instructions given to the jury instructed it as to the substance contained in 
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Wolfe’s proposed instruction. The trial court did not abuse its discretion in 

refusing to give the instruction. 

[12] Additionally, Wolfe argues that, in light of our Supreme Court’s opinion in 

McCowan v. State, 27 N.E.3d 760 (Ind. 2015), the trial court erred in instructing 

the jury. We disagree. First, McCowan was decided after Wolfe’s trial had 

concluded. Given that ambiguity existed in the law concerning the 

presumption of innocence and the exact concepts to be included in jury 

instructions at the time of Wolfe’s trial, a trial court cannot be expected to 

anticipate future Supreme Court holdings to shape its jury instructions. Id. at 

767. Second, the proposed jury instruction that Wolfe tendered to the trial 

court did not reflect the holding in McCowan, which held that every criminal 

defendant is entitled to the following jury instruction upon request: “The 

presumption of innocence continues in favor of the defendant throughout the 

trial. You should fit the evidence to the presumption that the defendant is 

innocent if you can reasonably do so.” Id. at 762. Wolfe did not propose such 

language or request such an instruction and cannot, therefore, assert that the 

trial court’s non-compliance with McCowan was error. Lastly, the instructions

given in the present case were practically identical to the instructions given 

under the facts of McCowan, which the Supreme Court upheld as being 

consistent with the then-existing standard enunciated in Robey. Id. at 767. The 

trial court did not abuse its discretion in refusing to give Wolfe’s proposed 

instruction.
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II. Jury Instruction on Causation

[13] Wolfe contends that the trial court abused its discretion in instructing the jury 

as to causation when it overruled his objection to the State’s tendered jury 

instruction. He asserts that the State’s tendered instruction was misleading and 

confusing because it allowed the jury to find that his actions substantially 

caused the accident that resulted in McNeal’s death “at a standard less than 

needed to establish proximate cause beyond a reasonable doubt.” Appellant’s 

Br. at 17. Wolfe argues that the trial court erred in allowing the State’s 

instruction because it failed to inform the jury that proximate cause was the 

standard by which his conduct needed to be evaluated and failed to define 

proximate cause or how the term “substantial cause” incorporates the 

“principles of proximate cause.” Id. at 19. 

[14] The trial court has broad discretion regarding the manner by which it instructs

the jury, and we generally review that discretion only for abuse. McCowan, 27 

N.E.3d at 763. In doing so, “we consider the instructions ‘as a whole and in 

reference to each other’ and do not reverse the trial court ‘for an abuse of that 

discretion unless the instructions as a whole mislead the jury as to the law in the 

case.’” Helsley v. State, 809 N.E.2d 292, 303 (Ind. 2004) (quoting Carter v. State,

766 N.E.2d 377, 382 (Ind. 2002)). 

[15] In the present case, the State tendered the following proposed jury instruction 

on the definition of causation:
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In order to prove the defendant caused the death of another 

person, the State is required to prove that the defendant’s 

operation of a motor vehicle was a “substantial cause” of the 

resulting death, not merely a “contributing cause.”

Id. at 163. Wolfe objected, arguing that the term “substantial cause” could 

cause the jury to shift the burden of proof from the State to him. Tr. at 316. 

The trial court overruled Wolfe’s objection, and the instruction was included in 

the final jury instructions. 

[16] The causation instruction given by the trial court was a correct statement of the 

law. In many previous cases, the exact language of the instruction given by the 

trial court has been upheld as properly explaining the required proof that the 

defendant’s operation of a motor vehicle was the substantial cause of the 

resulting death and not merely a contributing cause. Abney v. State, 766 N.E.2d 

1175, 1177 (Ind. 2002); Rowe v. State, 867 N.E.2d 262, 268 (Ind. Ct. App. 2007); 

Radick v. State, 863 N.E.2d 356, 358 (Ind. Ct. App. 2007). Although Wolfe is 

correct in his assertion that it is a “well-settled rule” that the evidence must 

show that the defendant’s conduct was a “proximate cause of the victim’s injury 

or death,” our Supreme Court in Abney approved the approach that the State 

must prove the defendant’s operation of a motor vehicle was the “substantial 

cause” of the resulting death and not merely a contributing cause. Abney. 766 

N.E.2d at 1177-78. Therefore, the use of substantial cause as the level of 

causation required to be proven by the State has been upheld by both the 

Supreme Court and this court, and the instruction given by the trial court was a 

correct statement of the law. 
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[17] Wolfe’s argument that the term substantial cause was not clear or precise 

enough and, thus, allowed the jury to use its own definition of the term that 

may not have met the standard of reasonable doubt lacks merit. First, his 

contention ignores that numerous instructions informing the jury that every 

element of the crime, including causation, must be proven beyond a reasonable 

doubt. See Appellant’s App. 138-41, 145. Second, the instruction did not leave 

the jury with a complete lack of guidance as to the meaning of substantial 

cause; it instructed the jury that a substantial cause was not merely a 

contributing cause. Lastly, his argument mistakes a perceived ambiguity in the 

definition of substantial cause with a lessening of the State’s burden of proof. 

No one at trial alleged that the State’s burden of proof was less than beyond a 

reasonable doubt, and Wolfe has not presented any authority to support his 

contention. The trial court did not abuse its discretion in giving the State’s 

proposed instruction on causation.

III. Sufficient Evidence

[18] The deferential standard of review for sufficiency claims is well settled. When 

we review the sufficiency of evidence to support a conviction, we do not 

reweigh the evidence or assess the credibility of the witnesses. Cunningham v. 

State, 870 N.E.2d 552, 553 (Ind. Ct. App. 2007). We consider only the 

evidence most favorable to the verdict and the reasonable inferences that can be 

drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App. 

2014), trans. denied. We will not disturb the jury’s verdict if there is substantial 

evidence of probative value to support it. Id. We will affirm unless no 
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reasonable fact-finder could find the elements of the crime proven beyond a 

reasonable doubt. Tooley v. State, 911 N.E.2d 721, 724-25 (Ind. Ct. App. 2009), 

trans. denied. As the reviewing court, we respect “the jury’s exclusive province 

to weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 

2005).

[19] Wolfe argues that insufficient probative evidence was presented to support his 

conviction for operating a vehicle causing death with a controlled substance or 

its metabolite in the body. Specifically, he contends that the evidence was open 

to two reasonable interpretations as to whether he was “speeding and/or ran a 

red light” that resulted in the Taurus crashing into the school bus. Appellant’s 

Br. at 20. Wolfe, therefore, claims that the element of causation, whether he 

operated the vehicle in such a manner that substantially caused McNeal’s 

death, was not proven beyond a reasonable doubt.

[20] In order to convict Wolfe, the State was required to prove beyond a reasonable 

doubt that he, while being at least twenty-one years of age, caused the death of 

McNeal when operating a vehicle with a controlled substance or its metabolite 

in his blood, in this case THC. Ind. Code § 9-30-5-5(b)(2); Appellant’s App. at 

21. Wolfe’s contention focuses on the causation element of the crime. 

Although the State is required to prove that Wolfe’s conduct was the proximate 

cause of McNeal’s death, the conduct to be looked at in the analysis is “the 

driver’s act of operating the vehicle, not the particular manner in which the 

driver operates the vehicle.” Rowe, 867 N.E.2d at 268 (citing Spaulding v. State, 

815 N.E.2d 1039, 1042 (Ind. Ct. App. 2004)). 
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[21] In the present case, considering the evidence most favorable to the verdict as we 

are required to do, the evidence presented showed that, at the time of the 

accident, Wolfe was driving his vehicle with McNeal as a passenger. As he 

approached the intersection, Wolfe was driving fifty-one miles per hour in a 

thirty-five miles-per-hour zone and instead of slowing down as he approached 

the red light, the evidence showed that he did not display any brake lights, and 

there were no skid marks at the scene. Tr. at 67, 229. Two 911 callers, an 

eyewitness at the accident scene, and the bus driver, Barr, all testified that 

Wolfe ran the red light; additionally, an expert witness testified that Wolfe was 

at fault for the accident. Id. 48-49, 64, 234; State’s Ex. 7. We, therefore, 

conclude that sufficient evidence was presented to support Wolfe’s conviction 

for operating a vehicle causing death with a controlled substance or its 

metabolite in the body as a Class B felony. Wolfe’s assertion that there was 

insufficient evidence presented to support his conviction because his witnesses

testified that the light was green when Wolfe went through the intersection is 

merely an invitation to reweigh the evidence, which we cannot do. 

Cunningham, 870 N.E.2d at 553. 

[22] Affirmed.

Najam, J., and Barnes, J., concur.