Gina Price, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Gina Price (“Price”) appeals, following her jury trial, her convictions for Level 4 felony causing death when operating a motor vehicle with a Schedule II controlled substance or its metabolites in the blood,¹ Level 5 felony causing serious bodily injury when operating a motor vehicle with a Schedule II controlled substance or its metabolites in the blood,² and the sentence imposed thereon. Price argues that: (1) the trial court abused its discretion when it instructed the jury; (2) Indiana Code § 9-30-5-5 and Indiana Code § 9-30-5-4 (“the statutes”) violate the Equal Protection Clause of the United States Constitution; and (3) her sentence is inappropriate. Concluding that the trial court did not abuse its discretion when it instructed the jury that Price has failed to meet her burden showing that the statutes violate the Equal Protection Clause, and that her sentence is not inappropriate, we affirm the trial court's judgment and the sentence imposed.

[2] We affirm.

Issues

1. Whether the trial court abused its discretion when it instructed the jury.

2. Whether the statutes violate the Equal Protection Clause of the United States Constitution.

3. Whether Price's sentence is inappropriate.

Facts 3

[3] On the morning of October 18, 2021, Union County Highway Workers Justin Moore (“Moore”) and Doug Scaggs (“Scaggs”) were working on leveling driveways off of Clifton Road (“the road”), which had recently been paved. Moore and Scaggs drove a dump truck filled with gravel and used their truck to pour gravel along the driveways in order to make the driveways level with the road. Moore and Scaggs left their dump truck in one such driveway and stepped onto the road in order to sweep gravel off of the road and back onto the connected driveway. Moore and Scaggs were wearing high visibility shirts.

[4] At that same time, Price was driving her Honda Accord (“car”) eastbound along the road. Price, who was driving downhill, hit Moore and Scaggs with her car while driving around forty-five miles per hour. There were no skid marks on the road made from Price's car. Her car hit Moore, and his body went up onto the car's hood, cracking its windshield before he toppled to the ground. Scaggs also suffered substantial injuries from the accident and was knocked off the road. Moore died, but Scaggs survived. Price, who had initially believed that she had struck a pole, pulled over and called 911 on her cellphone.

[5] When police officers arrived on the scene, they found Moore's body alongside the roadway. The bumper cover of the car was found near Moore's body. Scaggs was still standing nearby, but he had a substantial headwound and was bleeding profusely. A large pool of blood was near the road due to Scaggs’ injury. The officers also found a scuff mark along the road that was the same color as Moore's boots. The mark left by Moore's boot was about a foot and a half into the roadway and traveled for over a foot along the road. Scaggs was airlifted by emergency personnel to the hospital.

[6] Price's car had significant damage. The car was missing the front bumper cover and had damage to the front fender and hood on the passenger side. Additionally, the windshield on the passenger side of the car was shattered and pushed in and the A-pillar ⁴ on the passenger side was damaged and covered in human blood and hair.

[7] Price told the officers that she had not seen Moore and Scaggs on the road. She initially told the officers that she believed that she had struck a pole. Price also told an officer that her windshield had fogged up. Price told one officer that she had looked at her phone, but, soon after, told another officer that she had only looked at her phone after the impact. The officers did not detect signs of intoxication from Price. However, an officer drove Price to a local hospital in order to get a blood sample. The officer sent the blood sample to a lab for testing. The officers also applied for and received a warrant to search Price's cellphone.⁵ The results from Price's blood draw revealed that her blood contained: (1) fentanyl with a concentration of 4.8 plus or minus 0.7 nanogram per milliliter; (2) methadone with a concentration of 130 plus or minus 18 nanograms per milliliter; (3) norfentanyl with a concentration of 1.9 plus or minus .3 nanograms per milliliter; and (4) EDDP with a concentration of 14 plus or minus 2 nanograms per milliliter.

[8] After emergency medical personnel airlifted Scaggs for medical care, he spent about two weeks in the hospital. Scaggs’ injuries were extensive. Scaggs face had been very swollen and Scaggs had been bleeding from his eyes and ears. Additionally, Scaggs had black eyes, fractured bones around his eyes, and muscle damage to one of his eyes. Scaggs right eardrum had been hanging out of his ear and his mouth had been partially caved in. Scaggs had to relearn how to eat due to the significant amount of damage to his head.

[9] After about a week, Scaggs left the hospital because the hospital needed more beds due to COVID-19. However, Scaggs continued to have trouble eating. Scaggs became very weak, and eventually, collapsed in the shower. Scaggs returned to the hospital for another five or six days before he returned home.

[10] Ultimately, the State charged Price with Count 1 - Level 4 felony causing death when operating a motor vehicle with a Schedule II controlled substance or its metabolites in the blood for her actions towards Moore, Count 2 - Level 5 felony reckless homicide for her actions towards Moore, and Count 3 - Level 5 felony causing substantial bodily injury when operating a motor vehicle with a Schedule II controlled substance or its metabolites in the blood for her actions towards Scaggs. In October 2023, Price filed a motion to dismiss. In her motion, Price argued that the statutes violated the Equal Protection Clause of the United States Constitution and Article I, Section 23 of the Indiana Constitution. In support of this contention, Price argued that “scientific advancements have now established threshold levels of impairment for certain Schedule 1 and 2 controlled substances” and, therefore, the “statute's disparate treatment of individuals based on the substance in their system is no longer rational[.]” (App. Vol. 2 at 84). Price further argued that, based on these scientific advancements, “the statute[s] fail[ ] the rational basis test under both Constitutions.” (App. Vol. 2 at 84).

[11] The trial court held a hearing on Price's motion to dismiss on January 3, 2024. Price made the same equal protection argument from her motion to dismiss before the trial court. The trial court issued an order denying Price's motion to dismiss. In its order, the trial court stated that it presumed that the statutes were constitutional.

[12] Also in January 2024, the trial court held a four-day jury trial. In Price's opening statement, she told the jury that the accident had been unforeseeable because Moore had stepped onto the road without warning and had been hit by Price's car. Multiple police officers testified at trial to the facts set forth above. Additionally, a forensic pathologist (“the forensic pathologist”) testified extensively about Moore's cause of death. Specifically, the forensic pathologist testified that “the most significant injuries” on Moore's body were to his “head and neck[.]” (Tr. Vol. 3 at 106). Specifically, the forensic pathologist testified that Moore had two lacerations on his forehead that were “full thickness[,]” which meant that the skin had been torn “all the way down underneath to the underlying bone[.]” (Tr. Vol. 3 at 106). The forensic pathologist also testified that Moore had a dislocated elbow, a fracture of his right leg, a depressed skull fracture, bleeding around the brain, brain lacerations, a severe fracture to the base of the skull, three fractured ribs on his right side, lacerations on his liver, bleeding in his abdomen, and a bruised lung. The forensic pathologist also testified that the cause of death was blunt force trauma to the head, chest, and abdomen. When the State asked the forensic pathologist if he believed that the cause of death was from the vehicular accident, he responded, “[a]bsolutely, 100 percent.” (Tr. Vol. 3 at 110). The forensic pathologist also testified that Moore's injuries “could be consistent with him striking th[e car's] A-pillar[.]” (Tr. Vol. 3 at 110).

[13] A forensic scientist with the Indiana Department of Toxicology (“the forensic scientist”) testified that the blood sample taken from Price tested positive for fentanyl, methadone, EDDP, and norfentanyl. The forensic scientist explained that fentanyl and methadone were Schedule II controlled substances and that norfentanyl and EDDP were metabolites of fentanyl and methadone.

[14] Scaggs’ wife (“Scaggs’ wife”) testified at the trial. Scaggs’ wife testified that she had been married to Scaggs for forty-five years. Scaggs’ wife testified that, when she first saw Scaggs at the hospital, his face was “really, really swollen.” (Tr. Vol. 4 at 17). Scaggs’ wife testified that Scaggs had become unresponsive as the swelling in his face worsened. Scaggs’ wife testified that, after Scaggs had gone home, he had trouble eating because “the blood [had been] strangling him[.]” (Tr. Vol. 4 at 21). She testified that Scaggs would never recover from his injuries. She specifically noted that Scaggs had multiple brain bleeds, permanent brain damage, vision loss in an eye, and deafness in one ear. Scaggs’ wife noted that Scaggs was different now because he talked constantly, repeated himself often, did not have much of a filter, and had trouble with his memory.

[15] Scaggs testified at the trial that he did not remember what happened after the accident. Scaggs further testified that he cannot hear out of his right ear without a hearing aid and that he has glaucoma. Scaggs also expressed concern about vision loss. Scaggs also testified that he has trouble with his short-term memory and cannot remember the names of his grandchildren.

[16] During Price's presentation of evidence and outside the presence of the jury, Price called Forensic Toxicologist Melissa Galey (“Toxicologist Galey”) to the stand for an offer to prove in support of Price's equal protection argument made in her motion to dismiss. Toxicologist Galey examined Price's toxicology results and testified that fentanyl was “a little tricky” because “people can have a tolerance to it.” (Tr. Vol. 4 at 107). Toxicologist Galey further testified that she had seen impairment by fentanyl at lower levels and higher levels, and it depended on the person's tolerance level to the fentanyl. Toxicologist Galey also testified that whether or not methadone would cause “impairment in someone would also depend on the totality of the evidence, not just the number.” (Tr. Vol. 4 at 109). Toxicologist Galey further testified that norfentanyl and EDDP, the metabolites of fentanyl and methadone, did not contribute to a person's impairment level. Toxicologist Galey testified that “it [wa]s possible” for a person who had Price's levels of fentanyl and methadone in his or her body to be impaired, but that determination would also be based on that person's behavior. (Tr. Vol. 4 at 115). When Price asked Toxicologist Galey if it would be possible to determine a person's intoxication based on the amount of a drug in a person's blood, she responded, “[n]ot just based off of that number, no.” (Tr. Vol. 4 at 115).

[17] After the conclusion of evidence, the parties discussed jury instructions. Price objected to jury instructions number 9, 10, and 12. Price argued that the case Yeary v. State, 186 N.E.3d 662 (Ind. Ct. App. 2022), expressly rejected the use of jury instruction number 12. Price offered her own proposed instruction and argued that the trial court should tender her proposed instruction in place of jury instruction number 9. She further argued that jury instruction number 10 and 12 should be removed. Jury instruction number 9, 10, 11, and 12 read as follows:

Instruction nine,

Causing death and or serious bodily injury requires the State to prove beyond a reasonable doubt that the Defendant's operation of a motor vehicle was the responsible cause of the resulting death and or serious bodily injury, not a mere contributing cause. A person's conduct is responsible for causing an injury or death if the injury or death would not have occurred without the conduct, and the injury or death was a natural, probable, and foreseeable result of the conduct. There can be more than one responsible cause for injury or death.

Instruction ten,

On Counts 1 and 3, the State need not establish a causal link between: [(1)] a controlled substance or its metabolite listed in Schedule I or II in a driver's blood; and [(2)] the fact that injury or death resulted from his or her driving.

Instruction [ ] [eleven],

When an action of the victim, or any third party or non-human, affects the chain of causation, foreseeability is, again, a factor. Such an ․ occurrence is called an intervening cause, and it becomes the overriding cause breaking the chain of causation if it ․ was not foreseeable. If an intervening or overriding cause helped bring about the result, the Defendant is not criminally liable. It would be unfair to hold her responsible for the result.

Instruction [twelve],

Cause of death is the event which initiates a chain of events, however short or protracted, that results in the death of an individual.

(Tr. Vol. 4 at 171-72).

[18] During her closing statement, Price told the jury that “this case is all about foreseeability.” (Tr. Vol. 4 at 142). Price further told the jury that there was nothing that she could have done to stop the accident from happening. Price focused on the fact that Moore and Scaggs had not put any cones or signs on the road to signal to drivers that they were working on the road. She told the jury that drivers and pedestrians have to “work together to ensure these kinds of things don't happen.” (Tr. Vol. 4 at 152). Finally, Price told the jury that Moore had backed onto the road, and that his act was an intervening cause.

[19] At the conclusion of the jury trial, the jury found Price guilty on all counts. The trial court merged Counts 1 and 2. The trial court also entered judgments of conviction for Count 1 - Level 4 felony causing death when operating a motor vehicle with a Schedule II controlled substance or its metabolite in the blood and Count 3 - Level 5 felony causing serious bodily injury when operating a motor vehicle with a Schedule II controlled substance or its metabolites in the blood. The trial court ordered a presentence investigation report (“PSI”) and set a sentencing hearing.

[20] The trial court held a sentencing hearing in February 2024. During the hearing, multiple members of Moore's family testified. Specifically, Moore's father (“Moore's father”), who spoke on behalf of himself, Moore's mother, and Moore's brother, testified that the death of Moore “killed a big part of each one of us.” (Tr. Vol. 4 at 188). Moore's father further testified that “the grieving never stops” and that “it d[id] not get any easier as time [went] on.” (Tr. Vol. 4 at 188). Moore's father noted that his family “mostly stay[ed] home every day” and “mourn[ed] the loss of [Moore].” (Tr. Vol. 4 at 188). Moore's daughter (“Moore's daughter”), who had been twelve years old when Moore had died, also gave a statement. Moore's daughter testified that her life had “disappeared” because she “would never get to see [her] daddy again.” (Tr. Vol. 4 at 190). Moore's daughter noted that her father would never get to see her graduate high school or walk her down the aisle. Moore's daughter testified that Moore had been her best friend and that she would eventually be at a place where she would not “cry every night about losing [her] daddy[.]” (Tr. Vol. 4 at 191).

[21] Moore's wife (“Moore's wife”) also gave a statement. Moore's wife spoke about the grief that came with having to tell Moore's parents and her daughter that Moore had died. Moore's wife testified that “[n]ights were ․ very quiet” because Moore had always been “the light of the house, the noise maker, both awake and asleep. The man couldn't stop talking, not even when he slept.” (Tr. Vol. 4 at 192). Moore's wife noted that Moore's daughter had cried when she had started high school because Moore had not been there and had cried in a room full of people when she had obtained her learner's permit because her dad had not been there. Moore's wife further testified that Moore “was [her] husband, but he was [Moore's daughter's] everything. He was her confidant, her partner in crime, and her biggest fan.” (Tr. Vol. 4 at 193-94).

[22] The State argued that the harm, injury, or loss suffered by the victims was significant and greater than the elements of the offense. In support of this contention, the State noted that both Moore and Scaggs had been the primary income earners for their households. The State further noted that Scaggs had been “irrevocably changed as a result of this crash.” (Tr. Vol. 4 at 198). The State also pointed to the fact that, in the PSI, Price had admitted to using fentanyl on the morning of the last day of her jury trial. Further, the State argued that Price had failed to complete multiple drug treatment programs, including one that she had attended after Moore's death and Scaggs’ injury. Ultimately, the State argued for consecutive sentences totaling fifteen years.

[23] Price argued that Moore's death and Scaggs’ injuries were elements of the crimes that Price had been convicted of by the jury. Price further argued that she had no criminal history and that this crime was likely to not reoccur. Price asked the trial court to consider substance abuse recovery programs such as the recovery while incarcerated program and asked the trial court to impose the advisory sentence.

[24] The trial court found as an aggravating circumstance that: (1) the harm, injury, loss, or damage suffered by the victim was significant and greater than the elements necessary to prove the commission of the offense; (2) Price had recently violated the conditions of pretrial release; (3) the nature and circumstances of the crime; (4) Price had a history of substance abuse; and (5) Price's need of correctional or rehabilitative treatment. The trial court noted that the PSI provided that Price had smoked marijuana every day from the age of nineteen to thirty-two. The PSI also revealed that Price had consumed alcohol every day from the age of twenty to thirty-four and that she regularly drank a half gallon of whiskey. The PSI also provided that Price had started using cocaine at age nineteen and continued to use cocaine off and on over the years. Further, the PSI revealed that Price had begun using fentanyl every day starting in January 2020 until October 2020 and that Price had relapsed on fentanyl in October 2021. The trial court noted that Price had failed multiple times to stop her illegal drug use, including a relapse that had occurred after the date of her offenses. The trial court found as a mitigating circumstance Price's lack of a criminal history.

[25] The trial court sentenced Price to ten (10) years executed at the Indiana Department of Correction (“DOC”) for her Level 4 felony conviction. The trial court sentenced Price to five (5) years, with two (2) years executed and three (3) years suspended to community corrections for her Level 5 felony conviction. The trial court ordered the sentences to be served consecutively, for an aggregate fifteen (15) year sentence, with twelve (12) years executed at the DOC and three (3) years suspended to community corrections. The trial court also recommended that Price complete the recovery while incarcerated program at the DOC.

[26] Price now appeals.

Decision

[27] Price argues that: (1) the trial court abused its discretion when it instructed the jury; (2) the statutes violated the Equal Protection Clause of the United States Constitution; and (3) her sentence is inappropriate. We address each of her arguments in turn.

1. Jury Instruction

[28] We again note that Price's statement of the facts does not set out the facts at trial regarding the challenged jury instruction. Further, at no point in her brief does Price set out the text of jury instructions 9 or 10 that she attempts to challenge on appeal. Her failure to set out these instructions is a violation of Appellate Rule 46(A)(8)(e), which provides that “[w]hen error is predicated on the giving or refusing of any instruction, the instruction shall be set out verbatim in the argument section of the brief with the verbatim objections, if any, made thereto.” Thus, Price has waived any appellate argument regarding jury instructions number 9 or 10. See Watson v. State, 972 N.E.2d 378, 382 n. 2 (Ind. Ct. App. 2012) (holding that appellant waived a jury instruction argument when he did not comply with Indiana Appellate Rule 46(A)(8)(e)). See also Davis v. State, 892 N.E.2d 156, 163 (Ind. Ct. App. 2008) (holding that appellant waived a jury instruction argument when appellant failed to set forth the challenged instruction in her brief or cite to the instruction in the record).

[29] We now turn to Price's remaining argument regarding jury instruction number 12. Instructing a jury is left to the sound discretion of the trial court and is reviewed only for an abuse of discretion. Patterson v. State, 11 N.E.3d 1036, 1040 (Ind. Ct. App. 2014). In reviewing a trial court's decision to give or refuse tendered jury instructions, we consider: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support giving the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions. Chambers v. State, 734 N.E.2d 578, 580 (Ind. 2000), reh'g denied. The purpose of jury instructions “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.” Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (cleaned up). “A defendant is only entitled to a reversal if he affirmatively demonstrates that the instructional error prejudiced his substantial rights.” Washington v. State, 840 N.E.2d 873, 888 (Ind. Ct. App. 2006) (cleaned up), trans. denied.

[30] Price specifically argues that the trial court abused its discretion when it gave jury instruction number 12. In support of this contention, Price cites to Yeary for the proposition that jury instruction number 12, which mirrored a challenged instruction in Yeary, “was error because the instruction essentially reads away, to a lay person, the ability of some other event to break the chain of causation.” (Price's Br. 9). We disagree.

[31] In Yeary, our Court held that the trial court erred by not giving proposed instructions that adequately explained to the jury the concepts of proximate and intervening causes in conjunction with an instruction that tracked the language of jury instruction number 12. Yeary, 186 N.E.3d at 680-81. Here, however, the trial court gave instructions on proximate and intervening causes when it gave jury instruction number 9 and 11 in conjunction with jury instruction number 12. Therefore, the trial court did not abuse its discretion and adequately instructed the jury on causation.

2. Equal Protection

[32] Price next argues that Indiana Code § 9-30-5-5 and Indiana Code § 9-30-5-4, the statutes under which she was convicted, violated the Equal Protection Clause of the United States Constitution.⁶ But, we note that Price's brief does not set out the language of the statutes, does not set out the language of the Equal Protection Clause, and provides no facts from the hearing in which she argued that the statutes violated the Equal Protection Clause. Instead, Price's argument section on this issue states that “Price recognizes the validity of the law and citations to the same provided in both her Motion and the State's response, with respect to each constitutional challenge, and incorporates the same as if fully reiterated herein.” (Price's Br. 11). However, “a party may not present an argument entirely by incorporating by reference from a source outside of the appellate briefs.” Bigler v. State, 732 N.E.2d 191, 197 (Ind. Ct. App. 2000), trans. denied. As a result, Price has waived any argument specifically articulated in her motion to dismiss made before the trial court and not found in her appellate brief.

[33] Waiver notwithstanding, we will briefly address what remains of Price's Equal Protection Clause argument. The Equal Protection Clause provides that “[n]o State shall ․ deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “A law attacked on equal protection grounds will be upheld if it survives rational basis review, unless the classification is drawn along suspect lines or infringes the exercise of fundamental constitutional rights, in which case it must survive heightened judicial scrutiny.” City of Indianapolis v. Armour, 946 N.E.2d 553, 559 (Ind. 2011), cert. granted and affm'd, 566 U.S. 673. Under rational basis review, “[a] statute can survive a rational basis scrutiny if the classification in the statute bears some rational relationship to a legitimate governmental goal.” Bennett v. State, 801 N.E.2d 170, 175 (Ind. Ct. App. 2003). In evaluating a challenge based on the Equal Protection Clause, we presume that a statute is constitutional. Id. The presumption continues until clearly overcome by a showing to the contrary. Id.

[34] Price acknowledges that, in Bennett and Shepler v. State, 758 N.E.2d 966 (Ind. Ct. App. 2001), trans. denied, our Court has “previously adjudicated” the constitutional challenge to the statutes that she attempts to raise on appeal. (Price's Br. 11). Price, however, argues that Toxicologist Galey's testimony that metabolites do not have an impairing effect demonstrates that our conclusion in Bennett is no longer valid. We disagree.

[35] In Bennett, our Court analyzed a constitutional challenge to Indiana Code § 9-30-5-5 under the Equal Protection Clause of the United States Constitution. In that case, Bennett, who was driving a delivery truck, disregarded a traffic light and crashed into another driver's car. The other driver died as a result of the crash. Bennett submitted to a drug screen which revealed that he had the metabolites of cocaine and marijuana – two controlled substances – in his blood. The State charged and obtained a conviction against Bennett under Indiana Code § 9-30-5-5. On appeal, our Court emphasized that “a flat ban on driving with any proscribed controlled substance in the body, whether or not capable of causing impairment, is permissible.” Bennett, 801 N.E.2d at 176. Our Court held that:

It is permissible because, unlike alcohol, there is no acceptable level of drug use that can be quantified so as to distinguish between users who can drive unimpaired and those who are presumptively impaired. Consequently, our legislature could have reasonably concluded that no level of schedule I or schedule II controlled substances can be acceptably combined with driving a vehicle. Thus, it is rational for the legislature to impose the flat ban with regard to controlled substances while not imposing the same ban with regard to alcohol.

Id. (cleaned up). Our Court also noted a second legitimate government interest of deterring drug use, which is another rational basis supporting the constitutionality of the statute. Id. at 177.

[36] Here, Price's arguments do not meet the heavy burden required to show that the statutes violate the Equal Protection Clause. Her arguments regarding vague medical advancements and lack of impairment from metabolites do not undercut the rational basis articulated in Bennett. Accordingly, we conclude that the statutes do not violate the Equal Protection Clause.

3. Inappropriate Sentence

[37] Finally, Price argues that her aggregate fifteen-year sentence is inappropriate.⁷ We may revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). The defendant has the burden of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) review “should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived correct result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008) (internal quotation marks omitted). Whether a sentence is inappropriate ultimately turns on “the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case.” Id. at 1224. “Appellate Rule 7(B) analysis is not to determine whether another sentence is more appropriate but rather whether the sentence imposed is inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted), reh'g denied.

[38] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence “is the starting point the Legislature has selected as an appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081. The jury found Price guilty of Level 4 felony causing death of another person when operating a motor vehicle with a Schedule II controlled substance or its metabolite in the blood and Level 5 felony causing substantial bodily injury to another person when operating a motor vehicle with a Schedule II controlled substance or its metabolite in the blood. A person who commits a Level 4 felony “shall be imprisoned for a fixed term of between two (2) and twelve (12) years, with the advisory sentence being six (6) years.” I.C. § 35-50-2-5.5. A person who commits a Level 5 felony “shall be imprisoned for a fixed term of between one (1) year and six (6) years, with the advisory sentence being three (3) years.” I.C. § 35-50-2-6(b). Here, the trial court sentenced Price to a ten (10) year executed sentence for her Level 4 felony conviction and to a sentence of five (5) years, with two (2) years executed and three (3) years suspended to community corrections for her Level 5 felony conviction. Thus, the trial court imposed an aggregate sentence of fifteen (15) years, with twelve (12) years executed at the DOC and three (3) years suspended to community corrections. This is less than the maximum sentence permitted by statute.

[39] Turning first to the nature of the offense, we note the collision caused by Price to be devastating. Price, who had fentanyl and methadone as well as their metabolites in her blood, drove her car into Moore and Scaggs, who were wearing high visibility shirts while working on the road. Moore died from his wounds, which were extensive and included, among others, multiple lacerations to his head that went all the way to the bone, a depressed skull fracture, a fracture at the base of his head, as well as multiple broken bones. Scaggs survived but spent nearly two weeks in the hospital. Additionally, Scaggs has multiple permanent injuries including, among others, vision loss, memory problems, deafness in one ear, and glaucoma.

[40] Turning to Price's character, we note her substance abuse to be pervasive. Price admitted to using marijuana, alcohol, and cocaine on and off for over a decade. Further, Price admitted to the use of fentanyl, including on the morning of the last day of her jury trial in violation of the terms of her pretrial release.

[41] Based on the nature of the offenses and her character, Price has failed to persuade us that her fifteen-year aggregate sentence, with twelve (12) years executed at the DOC and three (3) years suspended to community corrections, is inappropriate. Therefore, we affirm the sentence imposed by the trial court.

[42] Affirmed.

FOOTNOTES

1.   Ind. Code § 9-30-5-5.

2.   I.C. § 9-30-5-4.

4.   The A-pillar is “the metal post that's between the windshield and the driver or the passenger side door.” (Tr. Vol. 3 at 8).

5.   The search of the cellphone revealed that it was not actively being used to make a phone call or sending a text message at the moment of the crash.

6.   Price also argues that the statutes violate Article I, Section 23 of the Indiana Constitution. However, Price's brief does not set out a standard of review for an Indiana Constitution claim. See Ind. Appellate Rule 46(A)(8)(b) (providing that “[t]he argument must include for each issue a concise statement of the applicable standard of review”). Further, Price provides no cogent argument pointing to any cases or authorities that support a challenge under the Indiana Constitution. Thus, she has waived the argument on appeal. See Ind. Appellate Rule 46(A)(8)(a).

7.   Price also argues that the trial court erred when it found as an aggravating circumstance that the harm, injury, loss, or damage suffered by the victim was significant and greater than the elements necessary to prove the commission of the offense. However, Price failed to state a standard of review related to aggravating circumstances, failed to cite to any authority in support of her arguments, and failed to argue these arguments separately from her inappropriate sentence argument. Accordingly, she has waived this argument on appeal. See Ind. App. R. 46(A)(8); King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (explaining that “inappropriate sentence and abuse of discretion claims are to be analyzed separately”); McMahon v. State, 856 N.E.2d 743, 751 (Ind. Ct. App. 2006) (determining that argument on aggravating and mitigating circumstances was waived for no cogent argument or citations to authority in support of the proposition).

Pyle, Judge.

Judges Weissmann and Felix concur. Weissmann, J., and Felix, J., concur.