MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 06 2017, 8:37 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Hilary Bowe Ricks Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brian Walton, February 6, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1601-CR-64 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Shatrese M. Appellee-Plaintiff Flowers, Judge Trial Court Cause No. 49G20-1303-FA-18354
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 1 of 16 Case Summary
[1] Brian Walton appeals his convictions and sentence for class A felony dealing in
cocaine and class B felony dealing in narcotics. He challenges the trial court’s
jury instruction defining possession as well as its refusal to give his “mere
presence” instruction. He also challenges the trial court’s treatment of certain
mitigators and aggravators during sentencing and asserts that his thirty-five-year
sentence is inappropriate in light of the nature of the offenses and his character.
We affirm.
Facts and Procedural History [2] The facts most favorable to the verdict are as follows. On March 18, 2013,
Indianapolis Metropolitan Police Department Detective Steven Brinker worked
undercover with a confidential informant (“CI”) to conduct a controlled drug
buy. The dealer with whom they had originally planned their deal arrived at
the rendezvous point and told the detective and the CI that he had run out of
drugs and would have to wait to be resupplied. Shortly thereafter, a warning
signal came on in the detective’s vehicle indicating a need to add motor oil. As
the detective and the CI looked under the hood to address the problem, a gold
van approached and parked in front of them. The CI recognized one of the
men in the gold van, who exited and walked down the street. The CI spoke
with a person inside the gold van, and Detective Brinker approached. The
detective noted that the driver, identified as Walton, was the only person in the
gold van. He also observed a black sock in Walton’s lap containing what
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 2 of 16 appeared to be a large quantity of crack cocaine. Another man, identified as
Tristan Spralls, stood outside the van behind Detective Brinker as the detective
and Walton conversed. The detective handed Walton a marked twenty-dollar
bill, in exchange for which Walton handed him a packet containing a substance
later determined to be heroin.
[3] Detective Brinker returned to his vehicle and added motor oil. Immediately
thereafter, a third man approached him. The man, identified as Brandon
Walker, gave the detective twenty dollars’ worth of crack cocaine in exchange
for forty dollars in marked cash. The two men returned to the gold van to
obtain some more crack cocaine, for which the detective had already paid.
Detective Brinker noticed that Walton had moved to the passenger’s seat and
was still holding the black sock. Walton broke off a piece of the substance in
the sock and handed it to Spralls, who was now sitting in the driver’s seat.
Spralls immediately handed Detective Brinker the substance, later determined
to be crack cocaine.
[4] The gold van left, and Detective Brinker radioed other officers nearby to
conduct a stop and arrest. The officers searched for the gold van and found it
parked near an abandoned house. Police apprehended Walton, Spralls, and
Walker nearby. A search of the air vents in the gold van produced the black
sock, which contained one packet of 1.8067 grams of heroin, one packet of
84.99 grams of cocaine, and another packet containing 58.01 grams of cocaine.
Officers also recovered the marked bills and a total of $3000 cash.
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 3 of 16 [5] The State charged Walton with class A felony dealing in cocaine; class C felony
possession of cocaine; class B felony dealing in narcotics (heroin); class D
felony possession of heroin; class B felony dealing in cocaine; class B felony
conspiracy to deal cocaine; and class B felony conspiracy to deal cocaine.
During his jury trial, the trial court held a conference to discuss jury
instructions. Walton tendered an instruction on “mere presence,” which the
trial court refused. The jury acquitted Walton of class B felony conspiracy to
deal cocaine and convicted him on the six remaining counts. The trial court
merged the convictions and entered judgment on class A felony dealing in
cocaine and class B felony dealing in heroin. The trial court sentenced Walton
to thirty-five and fifteen years, to be served concurrently.
[6] Walton now appeals. Additional facts will be provided as necessary.
Discussion and Decision Section 1 – The trial court did not commit reversible error in refusing Walton’s “mere presence” instruction. [7] Walton contends that the trial court erred in refusing his tendered instruction
on “mere presence.” The trial court has broad discretion in instructing the jury,
and as a result, we review the trial court’s decision to give or refuse a party’s
tendered instruction for an abuse of discretion. Kane v. State, 976 N.E.2d 1228,
1231 (Ind. 2012). In conducting our review, 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
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 4 of 16 substance of the instruction was covered by other instructions that were given.”
Id. at 1230-31. “The purpose of a jury instruction 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.” Isom
v. State, 31 N.E.3d 469, 484 (Ind. 2015) (internal quotation marks omitted), cert.
denied (2016).
[8] Walton’s tendered instruction on mere presence reads, “You are hereby
instructed that it is the law of the State of Indiana that the mere presence at a
crime scene alone is not sufficient to support guilt beyond a reasonable doubt.”
Appellant’s App. at 115. The State also submitted a proposed instruction on
mere presence, noting its opinion that a mere presence instruction was not
necessary but reasoning that if the trial court found it appropriate to give one, it
should be a longer, more complete definition. The trial court cited Detective
Brinker’s testimony concerning a hand-to-hand exchange from Walton and
refused both parties’ tendered instructions. Tr. at 272.
[9] We agree with the trial court that the evidence did not support a mere presence
instruction. Detective Brinker testified that he purchased heroin directly from
Walton in exchange for the marked twenty-dollar bill. He observed a black
sock in Walton’s lap at the time of the transaction. Later, when he returned to
the van to retrieve the second half of the crack cocaine, he reported that Walton
still had the black sock containing what appeared to be crack cocaine and that
he saw Walton break off a piece of the crack and hand it to Spralls, who in turn
handed it to him. The evidence showed that Walton was not merely present
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 5 of 16 but instead was an active participant in the heroin and crack cocaine deals. The
trial court acted within its discretion when it refused Walton’s tendered
instruction on mere presence.
Section 2 – The trial court did not commit fundamental error in giving the State’s instruction defining possession. [10] In a related argument, Walton challenges the trial court’s instruction defining
possession. As the parties correctly observe, Walton did not object to the
possession instruction at trial. See Id. at 268 (Walton specifically stated, “No,
no objection,” concerning the instruction). As such, he has waived the issue for
review absent a showing of fundamental error. See Covey v. State, 929 N.E.2d
813, 819 (Ind. Ct. App. 2010) (defendant’s failure to object to jury instruction
results in waiver on appeal, except where error constituted fundamental error).
Fundamental error is an extremely narrow exception to the waiver rule,
whereby the defendant must demonstrate that the alleged error is so prejudicial
to his rights as to “make a fair trial impossible.” Ryan v. State, 9 N.E.3d 663,
668 (Ind. 2014). The fundamental error doctrine “applies only when the error
constitutes a blatant violation of basic principles, the harm or potential for harm
is substantial, and the resulting error denies the defendant fundamental due
process.” Covey, 929 N.E.2d at 819.
[11] “Jury instructions are to be considered as a whole and in reference to each
other; error in a particular instruction will not result in reversal unless the entire
jury charge misleads the jury as to the law of the case.” Flake v. State, 767
N.E.2d 1004, 1007 (Ind. Ct. App. 2002). “Instructions that unnecessarily
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 6 of 16 emphasize one particular evidentiary fact, witness, or phase of the case have
long been disapproved.” Ludy v. State, 784 N.E.2d 459, 461 (Ind. 2003).
[12] Final instruction No. 3 reads,
The word “possess” means to own or to exert control over. The word “possession” can take on several different, but related, meanings.
There are two kinds of “possession” – actual possession and constructive possession. A person who knowingly has direct physical control of a thing at a given time is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in constructive possession of it.
Possession may be sole or joint. If one person alone has actual or constructive possession of a thing, then possession is sole. If two or more persons share actual or constructive possession of a thing, then possession is joint. Possession may be actual or constructive, and either alone or jointly with others.
To establish constructive possession the State must prove a person had both the capability and the intent to maintain dominion and control over the contraband. The capability requirement means the State must show a person was able to reduce the contraband to his personal possession. The intent requirement means the State must show a person had knowledge of the contraband’s presence. Knowledge may be inferred from a person’s exclusive dominion and control over the premises containing the contraband, or from additional circumstances tending to show a person’s knowledge of the presence of the contraband. Examples of such circumstances include but are not Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 7 of 16 limited to:
1) incriminating statements by a person;
2) attempted flight or furtive gestures;
3) location of substances like drugs in settings that suggest manufacturing;
4) proximity of the contraband to a person;
5) contraband within a person’s plain view; and
6) mingling of the contraband with items owned by a person.
Appellant’s App. at 122.
[13] In Gray v. State, our supreme court explained the requirement of possession,
both actual and constructive.
A person actually possesses contraband when she has direct physical control over it. But a conviction for a possessory offense does not depend on catching a defendant red-handed. When the State cannot show actual possession, a conviction for possessing contraband may rest instead on proof of constructive possession. A person constructively possesses contraband when the person has (1) the capability to maintain dominion and control over the item; and (2) the intent to maintain dominion and control over it. A trier of fact may infer that a defendant had the capability to maintain dominion and control over contraband from the simple fact that the defendant had a possessory interest in the premises on which an officer found the item. We allow this inference even when that possessory interest is not exclusive. A trier of fact may likewise infer that a defendant had the intent to maintain dominion and control over contraband from the defendant’s
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 8 of 16 possessory interest in the premises, even when that possessory interest is not exclusive. When that possessory interest is not exclusive, however, the State must support this second inference with additional circumstances pointing to the defendant’s knowledge of the presence and the nature of the item.
957 N.E.2d 171, 174-75 (Ind. 2011) (citations omitted).1
[14] Here, the evidence shows that Walton had actual possession of the cocaine and
heroin. Detective Brinker received the heroin in a hand-to-hand exchange from
Walton. As for the cocaine, the detective twice observed Walton with the black
sock that appeared to contain crack cocaine, and he observed Walton break off
a piece of the crack rock and hand it to Spralls, who handed it to the detective.
Subsequent testing showed that the sock contained 143 grams of crack cocaine.
We find no error, fundamental or otherwise, in the trial court’s giving of Final
Instruction No. 3.
Section 3 – The trial court acted within its discretion in its treatment of mitigating and aggravating factors during sentencing. [15] Walton challenges the trial court’s treatment of mitigating and aggravating
factors during sentencing. Sentencing decisions rest within the sound discretion
of the trial court, and as long as a sentence is within the statutory range, it is
1 As best we can discern, Walton’s complaint is that the jury instruction is confusing concerning the mens rea element of constructive possession. We find that his argument lacks cogency and therefore is waived pursuant to Indiana Appellate Rule 46(A)(8). Elvers v. State, 22 N.E.3d 824, 833 n.4 (Ind. Ct. App. 2014). Even so, the record clearly supports Walton’s actual possession of the contraband.
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 9 of 16 subject to review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion
occurs where the trial court’s decision is clearly against the logic and effect of
the facts and circumstances before it, or the reasonable, probable, and actual
deductions to be drawn therefrom. Sloan v. State, 16 N.E.3d 1018, 1026 (Ind.
Ct. App. 2014). A trial court may abuse its discretion if the sentencing
statement omits mitigating factors that are clearly supported by the record and
advanced for consideration or identifies aggravating factors that are not
supported by the record. Anglemyer, 868 N.E.2d at 490-91.
[16] Walton first claims that the trial court abused its discretion by omitting certain
mitigators advanced for consideration. The trial court is not obligated to accept
the defendant’s argument concerning what constitutes a mitigating factor.
Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012), trans. denied.
Moreover, if the trial court does not find the existence of a mitigator after it has
been argued by counsel, the court is not obligated to explain why it found the
circumstance not to be mitigating. Anglemyer, 868 N.E.2d at 493.
[17] In particular, Walton cites as an overlooked mitigator the hardship that a
lengthy sentence would place on his children. The trial court is not required to
find that a defendant’s incarceration would result in undue hardship on his
dependents. Benefield v. State, 904 N.E.2d 239, 247 (Ind. Ct. App. 2009), trans.
denied. “Many persons convicted of crimes have dependents and, absent special
circumstances showing that the hardship to them is ‘undue,’ a trial court does
not abuse its discretion by not finding this to be a mitigating factor.” Id. At
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 10 of 16 sentencing, Walton introduced testimony from his mother and girlfriend
extolling his loving and active participation not only with his own children but
also with his girlfriend’s children. The trial court heard the evidence and simply
did not find this factor to be mitigating. We find no abuse of discretion here.
While Walton’s mother referenced some behavior problems that she had
observed in his five-year-old son since his incarceration, the evidence did not
reflect special circumstances indicative of undue hardship.
[18] With respect to Walton’s other proffered mitigators, we first note that the trial
court did take into account the rehabilitative programs that he completed in jail.
As for his expressions of remorse, Walton never expressed remorse for
committing the offenses; rather, he said that he was sorry for associating with
his cohorts. See Price v. State, 765 N.E.2d 1245, 1253 (Ind. 2002) (no abuse of
discretion where trial court did not find remorse as mitigator where defendant’s
statements of remorse fell “well short of a full acceptance of responsibility”).
The trial court was in the best position to evaluate Walton’s expressions, and
we will not reassess them. We find no abuse of discretion in the trial court’s
treatment of mitigating factors.
[19] Walton also takes issue with the trial court’s treatment of aggravating factors.
The trial court identified as aggravators Walton’s juvenile record (including two
true findings, one for an offense that would have been a felony if committed by
an adult); adult criminal record (including nine convictions, four of which were
felonies); recent parole violation; three probation revocations; the nature and
circumstances of the current offenses; and his arrest for another drug offense
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 11 of 16 while out on bond in the present cause. He claims that the trial court erred in
counting his juvenile and adult criminal records as two separate aggravators.
He also takes umbrage with the court’s identification of the nature and
circumstances of the offenses, which he claims was not sufficiently detailed to
constitute a valid aggravator. We address the nature and circumstances of the
offenses as part of our Indiana Appellate Rule 7(B) analysis below.
[20] As for the trial court’s separate identification of Walton’s juvenile and adult
criminal records, the trial court’s consideration of aggravators and mitigators is
not a mathematics equation in which the court simply subtracts the lesser
number from the greater; rather, the trial court identifies aggravators supported
by the record, and we conduct our review without reweighing the properly
identified factors. See Anglemyer, 868 N.E.2d at 491 (“The relative weight or
value assignable to reasons properly found or those which should have been
found is not subject to review for abuse [of discretion].”). The record supports
the identified aggravators, and we decline Walton’s invitations to assign a
different weight to them. We find no abuse of discretion here.
Section 4 – Walton has failed to meet his burden of establishing that his sentence is inappropriate in light of the nature of his offenses and his character. [21] Finally, Walton asks that we review and revise his sentence pursuant to
Appellate Rule 7(B), which states that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [this] Court finds
that the sentence is inappropriate in light of the nature of the offense and the
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 12 of 16 character of the offender.” When a defendant requests appellate review and
revision of his sentence, we have the power to affirm or reduce the sentence.
Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we
may consider all aspects of the penal consequences imposed by the trial court in
sentencing, i.e., whether it consists of executed time, probation, suspension,
home detention, or placement in community corrections, and whether the
sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010). We do not look to see whether the defendant’s
sentence is appropriate or if another sentence might be more appropriate; rather,
the test is whether the sentence is “inappropriate.” Fonner v. State, 876 N.E.2d
340, 344 (Ind. Ct. App. 2007). A defendant bears the burden of persuading this
Court that his sentence meets the inappropriateness standard. Anglemyer, 868
N.E.2d at 490.
[22] In considering the nature of Walton’s offenses, “the advisory sentence is the
starting point the Legislature has selected as an appropriate sentence.” Id. at
494. When determining the appropriateness of a sentence that deviates from an
advisory sentence, we consider whether there is anything more or less egregious
about the offense as committed by the defendant that “makes it different from
the typical offense accounted for by the legislature when it set the advisory
sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011). The
jury found Walton guilty of four felony dealing offenses and two felony
possession offenses. The trial court merged his convictions and entered
judgment on one count each of class A and class B felony dealing and
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 13 of 16 sentenced him to concurrent thirty-five- and fifteen-year terms. A class A
felony carries a sentencing range of twenty to fifty years, with a thirty-year
advisory term. Ind. Code § 35-50-2-4 (2013). A class B felony carries a
sentencing range of six to twenty years, with a ten-year advisory term. Ind.
Code § 35-50-2-5 (2013).
[23] Walton correctly observes that there are no exceptional circumstances
surrounding his offenses that would militate toward a lengthier sentence.
Nevertheless, we note that the black sock that Walton held and/or had in his
lap during the drug transactions was found to contain 143 grams of crack
cocaine, a quantity exponentially larger than the three-gram threshold for his
class A felony dealing offense. Ind. Code § 35-48-4-1(b) (2013). We also note
the number and seriousness of the offenses of which he was found guilty (one
class A felony, three class B felonies, one class C felony, and one class D
felony) and observe that his aggregate thirty-five-year term is well below his
maximum sentence exposure.
[24] As for Walton’s character, we conduct our review by engaging in a broad
consideration of his qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App.
2014), clarified on other grounds on reh’g, 11 N.E.3d 571. On the positive side, he
has completed numerous courses during his incarceration aimed at self-
improvement and addressing his drug abuse issues. He appears to be an
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 14 of 16 attentive father, at least as to some of his children. 2 On the negative side, his
most notable quality is his sustained disrespect for the law, as evidenced by a
criminal record that spans two decades. At age thirteen, he had a true finding
for shoplifting, class D felony theft if committed by an adult. He later had true
findings for criminal trespass and curfew violation. Entering into adulthood, he
was convicted of driving while suspended, resisting law enforcement, and class
D felony possession of a controlled substance. He followed up with convictions
for felony theft, felony cocaine possession, and felony auto theft, all the while
continuing to drive on a suspended license. He has had his probation revoked
three times, and while he was out on bail in the instant cause, he was arrested at
a local motel and charged with multiple dealing and possession offenses,
including four felonies and a misdemeanor. He is currently unemployed, and
though he stated that he previously supported himself by flipping houses, he
also reported that he has never filed a tax return. Appellant’s App. at 158.
[25] Simply put, Walton is a career criminal who has neither learned from his
mistakes nor responded favorably to lenient treatment. He has failed to meet
his burden of establishing that his sentence is inappropriate in light of the nature
of the offense and his character. Accordingly, we affirm.
2 The testimony concerning Walton’s attentive parenting appears mainly to concern the two children that he fathered with his current girlfriend and the girlfriend’s own children. The record shows that he has fathered seven additional children with six different mothers, and that he occasionally sees his other children, mostly when those children stay at his mother’s home. The record shows that he is in arrears on child support. Appellant’s App. at 158.
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 15 of 16 [26] Affirmed.
Kirsch, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-64 | February 6, 2017 Page 16 of 16