Dutch A. Choate v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 29, 2018
• Docket: 18A-CR-814
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 29 2018, 10:03 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Frederick A. Turner Curtis T. Hill, Jr. Bloomington, Indiana Attorney General of Indiana

Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dutch A. Choate, August 29, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-814 v. Appeal from the Morgan Superior Court State of Indiana, The Honorable Brian H. Williams, Appellee-Plaintiff. Judge Trial Court Cause No. 55D02-1701-F2-34

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-814 | August 29, 2018 Page 1 of 6 Statement of the Case [1] Dutch A. Choate appeals his conviction, following a jury trial, for possession of

methamphetamine, as a Level 4 felony, and his sentence. Choate raises the

following two issues for our review:

1. Whether the State presented sufficient evidence to support his conviction.

2. Whether the trial court erred when it sentenced him to an aggravated sentence for a felony conviction without entering a sentencing statement.

[2] We affirm in part, reverse in part, and remand for resentencing.

Facts and Procedural History [3] On December 24, 2016, at 5:00 a.m., Morgan County Sheriff’s Department

Officer Timothy Coryell went to a residence in Mooresville to serve an arrest

warrant on Lee Harley Davidson Bates. Amber Harless, who lived at the

residence, answered the door and gave Officer Coryell permission to enter and

locate Bates. However, instead of entering personally, Officer Coryell informed

other officers that Harless had indicated Bates was inside the residence, and

other officers entered with a canine unit.

[4] Officers apprehended Bates in the basement of the residence. There,

Mooresville Police Department Officer Mark Harris, who was assisting Officer

Coryell, heard “unknown people moving around” upstairs, which told Officer

Harris that “the scene [wa]s not secure” and “could still pose a danger to the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-814 | August 29, 2018 Page 2 of 6 law enforcement officers inside . . . .” Tr. Vol. 3 at 33. Accordingly, Officer

Harris went upstairs to secure the residence.

[5] Officer Harris entered Harless’ bedroom and looked under her bed, where he

observed Choate “laying on his stomach” with “his hands in front of him.” Id.

at 35. Officer Harris observed that Choate “had his hands on top of two

baggies with a large amount of substance” in them, which Officer Harris “later

determined to be methamphetamine[].” Id. at 37. After extracting Choate from

underneath the bed, officers further observed under the bed a tray, a glass

smoking pipe with some residue on it, and paraphernalia. Officers arrested

Choate.

[6] The State charged Choate with multiple offenses. After a jury trial, the jury

found him guilty of possession of methamphetamine, as a Level 4 felony. The

trial court entered its judgment of conviction and then sentenced Choate to an

enhanced term of ten years executed in the Department of Correction.

However, neither in its oral pronouncement of Choate’s sentence nor in its

written sentencing order did the court identify any aggravating factors or

otherwise explain its basis for Choate’s sentence. This appeal ensued.

Discussion and Decision Issue One: Sufficiency of the Evidence

[7] Choate first argues on appeal that the State failed to prove his possession of the

methamphetamine. For sufficiency challenges, we neither reweigh evidence

nor judge witness credibility. Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-814 | August 29, 2018 Page 3 of 6 We consider only the evidence most favorable to the judgment together with all

reasonable inferences that may be drawn from the evidence. Id. We will affirm

the judgment if it is supported by substantial evidence, even if the evidence is

conflicting. Id.

[8] Possession can be either actual or constructive. “A person actually possesses

contraband when she has direct physical control over it.” Gray v. State, 957

N.E.2d 171, 174 (Ind. 2011). However, “[w]hen the State cannot show actual

possession, it may nonetheless prevail on proof of constructive possession.” Id.

“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.” Id.

[9] Choate argues on appeal that the State failed to show that he constructively

possessed the two baggies of methamphetamine. But the State’s evidence

shows that, when Officer Harris discovered Choate under Harless’ bed, Choate

had “his hands on top of two baggies” filled with methamphetamine. Tr. Vol. 3

at 37. This is not a constructive possession case. When caught, Choate was in

actual possession of the methamphetamine.

[10] Still, Choate argues on appeal that he just “jumped under the bed to hide” and

in doing so just happened to be near contraband that was already there.

Appellant’s Br. at 10. Choate’s argument is neither here nor there on appeal.

The question before us is whether the State presented sufficient evidence to

support the jury’s verdict. The State did so by showing that Choate had direct

Court of Appeals of Indiana | Memorandum Decision 18A-CR-814 | August 29, 2018 Page 4 of 6 physical control over the methamphetamine when Officer Harris found him.

We affirm his conviction.

Issue Two: Sentence

[11] Choate next contends on appeal that the trial court erred when it sentenced him

to an enhanced term for a Level 4 felony without an explanation for that

sentence. The State concedes that the trial court erred in this respect when it

sentenced Choate, and we agree. See Anglemyer v. State, 868 N.E.2d 482, 490

(Ind. 2007) (“One way in which a trial court may abuse its discretion [in

sentencing] is failing to enter a sentencing statement at all.”).

[12] However, the parties dispute the proper remedy for this error. Choate argues

that he is entitled to the advisory sentence, as Indiana Code Section 35-38-1-1.3

(2018) requires a sentencing statement be made in the pronouncement of a

sentence for a felony conviction “unless the court imposes the advisory sentence

for the felony.” Thus, Choate reasons, because the trial court did not enter the

required sentencing statement, it was required to sentence him to the advisory

sentence. The State asserts, instead, that we should affirm Choate’s sentence as

harmless under Indiana Appellate Rule 7(B).

[13] We have long recognized that, where a trial court has abused its discretion in

sentencing a defendant, “the error is harmless if the sentence imposed was not

inappropriate” under Rule 7(B). Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct.

App. 2007) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007).

However, central to our review under Rule 7(B) is our assessment of “the trial

Court of Appeals of Indiana | Memorandum Decision 18A-CR-814 | August 29, 2018 Page 5 of 6 court’s recognition or nonrecognition of aggravators and mitigators as an initial

guide to determining whether the sentence imposed was inappropriate.”

Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016). We cannot do

that where, as here, the trial court has not entered a sentencing statement at all

for us to review. And neither can we say with confidence that the trial court

would have imposed the same sentence had it properly considered reasons that

enjoy support in the record. Anglemyer, 868 N.E.3d at 491. Accordingly, we

reverse Choate’s sentence and remand for resentencing. See Windhorst, 868

N.E.2d at 507.

[14] Affirmed in part, reversed in part, and remanded for resentencing.

Crone, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-814 | August 29, 2018 Page 6 of 6