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 Apr 10 2013, 8:27 am
establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
R. PATRICK MAGRATH GREGORY F. ZOELLER Alcorn Goering & Sage, LLP Attorney General of Indiana Madison, Indiana CYNTHIA L. PLOUGHE Deputy Attorney General
IN THE COURT OF APPEALS OF INDIANA
JAKE E. ESTES, ) ) Appellant-Defendant, ) ) vs. ) No. 39A01-1205-CR-214 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE JEFFERSON SUPERIOR COURT The Honorable Alison T. Frazier, Judge Cause No. 39D01-1107-FD-584
April 10, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge Jake E. Estes appeals his convictions for dealing in marijuana as a class D felony and
possession of marijuana as a class D felony. Estes raises three issues, which we revise and
restate as:
I. Whether the evidence was sufficient to support his convictions;
II. Whether the trial court abused its discretion in instructing the jury; and
III. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.
We affirm in part, reverse in part, and remand.
FACTS
In May of 2011, U.S. Postal Service Inspector Thomas Henderson received
information that someone living at Estes’s address, 106 Sycamore Drive in Hanover, Indiana,
had been receiving suspicious express parcels from California. Henderson placed a “parcel
watch” for the address and instructed the manager of the local post office to advise him when
the next parcel arrived for that particular address. Transcript at 27.
In June of 2011, Henderson intercepted a package addressed to “Mr. G Butters” at 331
W. Lagrange Road in Hanover, with a return address of “Brian Sherman” from Soquel,
California. State’s Exhibit 8. The return label did not match any known address in
California. Pursuant to a federal warrant, Henderson opened the parcel and discovered
approximately five pounds of “high grade” marijuana packaged in five “loaves.” Transcript
at 29, 63.
Henderson then arranged a controlled delivery of the intercepted package. The box
was resealed with a transmitter inside. Henderson, posing as a postal carrier, delivered the
2 package to the residence of Sandy Butters, who had previously acceded to Estes’s request
that she accept a package for him. Butters answered the door, acknowledged the package,
signed for it, and took it inside. Henderson retreated, but remained nearby, leaving police
officers to conduct surveillance of the residence.
Thereafter, Estes arrived at Butters’s residence, and within seconds the transmitter
indicated movement of the package. Approximately a minute after arrival, Estes exited the
residence holding the package. He placed it in his vehicle and drove away. A short distance
from Butters’s residence, police officers stopped Estes. From inside the vehicle, police
recovered the box of marijuana. Estes’s wallet and pants found in the vehicle’s trunk
contained cash amounting to $1,681. Police also found an express mail label from a day or
two earlier, addressed from “J. Long” at 331 W. LaGrange Road in Hanover to “Michael
Ericson, 1768 Del Mar Ct, Santa Cruz 95062.” Id. at 64; State’s Exhibit 22. The package
corresponding to that label was intercepted and found to contain $9,910.00 in cash. Estes’s
cellular phone held a contact number for “Michael Ericson.” State’s Exhibit 49.
PROCEDURAL HISTORY
On July 5, 2011, the State charged Estes with Count I, dealing in marijuana as a class
D felony; Count II, possession of marijuana as a class D felony; Count III, possession of
marijuana as a class D felony; and Count IV, maintaining a common nuisance as a class D
felony. That same day, the State also filed a separate information charging Estes with being
an habitual substance offender. On March 19, 2012, the State filed a motion to dismiss
Counts III and IV and a motion to amend certain language in Count I, both of which the court
granted that same day. On March 21, 2012, a jury trial was held, and on March 23, 2012, the 3 jury found Estes guilty on Counts I and II. The court dismissed the habitual substance
offender charge based upon a motion by the State, which indicated that Estes did not qualify
under the statute. On April 16, 2012, the court sentenced Estes to three years on each of his
convictions and ordered that the sentences be served concurrently. Thus, Estes was
sentenced to an aggregate term of three years in the Department of Correction.1
ISSUES
I.
For reasons which will become apparent below, we first address whether the evidence
was sufficient to support Estes’s convictions. When reviewing the sufficiency of the
evidence needed to support a criminal conviction, we neither reweigh evidence nor judge
witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only
the evidence supporting the judgment and any reasonable inferences that can be drawn from
such evidence.” Id. We will affirm if there is substantial evidence of probative value such
that a reasonable trier of fact could have concluded the defendant was guilty beyond a
reasonable doubt. Id.
The offense of possession of marijuana is governed by Ind. Code § 35-48-4-11, which
at the time of Estes’s offense provided in relevant part that “[a] person who . . . knowingly or
intentionally possesses (pure or adulterated) marijuana . . . commits possession of marijuana .
1 In the same sentencing order, Estes was sentenced on an unrelated matter to six months in the Jefferson County Jail for disorderly conduct as a class B misdemeanor and noted that his time had already been served. The court noted that “[t]he nature and circumstances surrounding this offense . . . indicate that two other inmates were involved in an altercation, and seven (7) other inmates joined in, including the defendant, and ganged up on one inmate” and that “[t]he inmate who was battered may be mentally infirm and the decision to join in at that time is one that the Court believes comes from a criminal mind.” Appellant’s Appendix at 255. 4 . . . However, the offense is a Class D felony [] if the amount involved is more than thirty
(30) grams of marijuana . . . .” The offense of dealing in marijuana is governed by Ind. Code
§ 35-48-4-10, which at the time of Estes’s offense provided in relevant part that “[a] person
who . . . knowingly or intentionally . . . possesses, with intent to . . . deliver . . . marijuana . . .
pure or adulterated[] commits dealing in marijuana . . . . The offense is . . . a Class D felony
if . . . the amount involved is more than thirty (30) grams but less than ten (10) pounds of
marijuana . . . .” The element of intent can be inferred from examining the surrounding
circumstances and reasonable inferences to be drawn therefrom. Turner v. State, 878 N.E.2d
286, 295 (Ind. Ct. App. 2007), trans. denied. “Evidence of the illegal possession of a
relatively large quantity of drugs is sufficient to sustain a conviction for possession with
intent to deliver.” Id.
Estes argues that the State presented insufficient evidence to support his convictions,
arguing that “the only thing connecting Estes to the box was his proximity.” Appellant’s
Brief at 14. More particularly, he denies that the State proved his knowledge that the box
contained contraband.
A conviction for possession of contraband may rest upon either actual possession or
constructive possession. Goodner v. State, 685 N.E.2d 1058, 1061 (Ind. 1997). Actual
possession of contraband occurs when a person has direct physical control over the item.
Gee v. State, 810 N.E.2d 338, 340 (Ind. 2004). In this case, Estes was observed personally
and exclusively carrying the box which held the transmitter and marijuana. He was in actual
possession of the box, but denies knowing it contained contraband. Knowledge is a mental
state, and thus the jury must resort to reasonable inferences as to its existence. Young v. 5 State, 761 N.E.2d 387, 389 (Ind. 2002).
The evidence most favorable to Estes’s convictions reveals that Estes asked Butters to
accept a package on his behalf. Immediately upon arriving at Butters’s residence, Estes took
the package and left with it. Estes was found in possession of a large quantity of marijuana,
in loaves. A law enforcement officer testified that the amount greatly exceeded that typical
of personal use. Postal clerk Jodi Wells testified that Estes had been routinely sending
similar-sized packages to California. He had used names other than his own when preparing
the labels for those packages. One recent label was found in the vehicle Estes was driving.
Over $9,000 had been shipped to a “Michael Ericson,” and the contact information for
“Michael Ericson” was found in Estes’s phone. According to post office records, three
packages from California were delivered to Estes’s address, 106 South Sycamore Street,
Hanover, in the month of June. Each package weighed between six and seven pounds. Two
of the three had fictitious return addresses.
We therefore conclude that evidence of probative value exists from which the jury
could have found Estes guilty beyond a reasonable doubt of dealing in marijuana and
possession of marijuana as class D felonies. However, although neither party raises the issue,
we must address, sua sponte, the issue of whether Estes’s conviction for possession of
marijuana is barred by double jeopardy principles. See Smith v. State, 881 N.E.2d 1040,
1047 (Ind. Ct. App. 2008) (“We raise the issue sua sponte because a double jeopardy
violation, if shown, implicates fundamental rights.”). The Indiana Constitution states that
“[n]o person shall be put in jeopardy twice for the same offense.” IND. CONST. art 1, § 14.
“[T]wo convictions may be the ‘same offense’ in violation of this Indiana Double Jeopardy 6 Clause if, with respect to either the statutory elements of the challenged crimes or the actual
evidence used to convict, the essential elements of one challenged offense also establish the
essential elements of another challenged offense.” McIntire v. State, 717 N.E.2d 96, 99 (Ind.
1999).
Here, the jury found Estes guilty of dealing in marijuana and possession of marijuana,
the court entered a judgment of conviction as to both, and sentenced him for each count. The
charging information for Count I as amended stated that Estes “knowingly or intentionally
possessed, with intent to deliver, MARIJUANA (pure or adulterated) in an amount over
thirty (30) grams.” Appellant’s Appendix at 171. The State charged that Estes under Count
II that he “knowingly or intentionally possessed MARIJUANA (pure or adulterated) in an
amount over thirty (30) grams.” Id. Thus, to prove that Estes was dealing in marijuana, it
was necessary for the State to prove that he was in possession of marijuana.
An offense is a lesser included offense if the included offense “is established by proof
of the same material elements or less than all the material elements required to establish the
commission of the offense charged.” Ind. Code § 35-41-1-16. Indiana law recognizes that
“the inherently included offense . . . is necessarily committed in the course of committing the
greater offense.” Rouse v. State, 525 N.E.2d 1278, 1280 (Ind. Ct. App. 1988) (quoting
Maynard v. State, 490 N.E.2d 762, 763 (Ind. 1986)), trans. denied. Here, under the
circumstances in which the dealing and possession charges and convictions were based upon
the same marijuana, Estes would have to commit the lesser offense of possession to commit
the greater offense of dealing. It is a violation of double jeopardy to sentence Estes for the
greater offense as well as the lesser-included offense. Thus, we remand with instructions that 7 the court vacate Estes’s conviction on Count II, possession of marijuana as a class D felony.2
II.
The next issue is whether the trial court abused its discretion in instructing the jury.
Generally, “[t]he purpose of an 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.” Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind. 2003), cert.
denied, 540 U.S. 1150, 124 S. Ct. 1145 (2004). Instruction of the jury is generally within the
discretion of the trial court and is reviewed only for an abuse of that discretion. Id. at 1163-
1164. When reviewing the refusal to give a proposed instruction, this court considers: (1)
whether the proposed instruction correctly states the law; (2) whether the evidence supports
giving the instruction; and (3) whether other instructions already given cover the substance of
the proposed instruction. Driver v. State, 760 N.E.2d 611, 612 (Ind. 2002). To constitute an
abuse of discretion, the instruction given must be erroneous, and the instructions taken as a
whole must misstate the law or otherwise mislead the jury. Benefiel v. State, 716 N.E.2d
906, 914 (Ind. 1999), reh’g denied, cert. denied, 531 U.S. 830, 121 S. Ct. 83 (2000).
Before a defendant is entitled to a reversal, he or she must affirmatively show that the
erroneous instruction prejudiced his substantial rights. Lee v. State, 964 N.E.2d 859, 862
(Ind. Ct. App. 2012) (citing Gantt v. State, 825 N.E.2d 874, 877 (Ind. Ct. App. 2005)), trans.
denied. An error is to be disregarded as harmless unless it affects the substantial rights of a
party. Id. (citing Oatts v. State, 899 N.E.2d 714, 727 (Ind. Ct. App. 2009); Ind. Trial Rule
2 We observe that because the court ordered that Estes serve his sentences concurrently, our order vacating Count II does not affect his aggregate, three-year term in the Department of Correction.
8 61). “Errors in the giving or refusing of instructions are harmless where a conviction is
clearly sustained by the evidence and the jury could not properly have found otherwise.” Id.
at 862-863 (quoting Dill v. State, 741 N.E.2d 1230, 1233 (Ind. 2001)).
At the close of the evidence, Estes tendered the following two instructions:
Under the law of this state, a person charged with a crime is presumed to be innocent. This presumption continues in favor of the accused thruout [sic] the trial of this cause. To overcome the presumption of innocence, the State must prove the Accused guilty of each essential element of the crime charged, beyond a reasonable doubt.
The Accused is not required to present any evidence to prove his innocence or to prove or explain anything.
You should attempt to fit the evidence to the presumption that the Accused is innocent.
If the evidence in this case is susceptible of two (2) constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the innocence of the Accused, and the other to his guilt, it is your duty under the law to adopt the interpretation which is consistent with the Accused’s innocence, and reject that which points to his guilt.
Appellant’s Appendix at 201. The other instruction stated:
Evidence which merely tends to establish a suspicion of guilt, or evidence which tends to establish a mere opportunity to commit the offense charged, is clearly insufficient to sustain a conviction. A verdict based merely on suspicion, opportunity, probability, conjecture, speculation, and unreasonable inference of guilt gleaned from vague circumstances or evidence is not sufficient to find the accused guilty.
Id. at 204.
The trial court rejected Estes’s proffered instructions, opining that their substance was
covered by pattern instructions, as follows:
Final Instruction 5
9 Under the law of this State, a person charged with a crime is presumed to be innocent. To overcome the presumption of innocence, the State must prove the Defendant guilty of each element of the crime charged, beyond a reasonable doubt.
The Defendant is not required to present any evidence to prove his innocence or to prove or explain anything.
Final Instruction 6
The burden is upon the State to prove beyond a reasonable doubt that the Defendant is guilty of the crimes charged. It is a strict and heavy burden. The evidence must overcome any reasonable doubt concerning the Defendant’s guilt. But it does not mean that a Defendant’s guilt must be proved beyond all possible doubt.
A reasonable doubt is a fair, actual and logical doubt based upon reason and common sense. A reasonable doubt may arise either from the evidence or from a lack of evidence. Reasonable doubt exists when you are not firmly convinced of the Defendant’s guilt, after you have weighed and considered all the evidence.
A Defendant must not be convicted on suspicion or speculation. It is not enough for the State to show that the Defendant is probably guilty. On the other hand, there are very few things in this world that we know with absolute certainty. The State does not have to overcome every possible doubt.
The State must prove each element of the crimes by evidence that firmly convinces each of you and leaves no reasonable doubt. The proof must be so convincing that you can rely and act upon it in this matter of the highest importance.
If you find that there is a reasonable doubt that the Defendant is guilty of the crimes, you must give the Defendant the benefit of that doubt and find the Defendant not guilty of the crime under consideration.
Id. at 233-234.
In addition, the trial court gave the following instruction:
Final Instruction 7
10 Direct evidence means evidence that directly proves a fact, and that, if true, conclusively establishes that fact.
Circumstantial evidence means evidence that proves a fact from which you may conclude the existence of another fact.
It is not necessary that facts be proved by direct evidence. Both direct evidence and circumstantial evidence are acceptable as a means of proof. A conviction may be based solely on circumstantial evidence. Where proof of guilt is by circumstantial evidence only, it must be so conclusive and point so convincingly to the guilt of the accused that the evidence excludes every reasonable theory of innocence.
Id. at 235.
Estes argues that the jury was not adequately instructed on the presumption of
innocence and the duty to reconcile evidence according to the theory of innocence if possible.
Estes argues that he was entitled to have the jury instructed in a more explicit manner upon
the presumption of innocence and their evaluation of conflicting evidence. In particular,
Estes asserts that the jury was not advised to attempt to fit the facts into a presumption of
innocence or to favor his explanation in deciding between two reasonable explanations of the
evidence, nor was the jury expressly instructed that the presumption of innocence continues
throughout the trial.
The State argues that “the court’s instructions adequately conveyed to the jury the high
burden the State had to prove [Estes] guilty,” noting that Final Instruction 5 “explained that
[Estes] was presumed to be innocent and that the State bore the burden of proving him guilty
beyond a reasonable doubt.” Appellee’s Brief at 9. The State argues that “[t]he concept of
the language . . . telling the jury to attempt to fit the evidence to the presumption of [Estes’s]
innocence is also covered in the instructions given by the court, albeit in different language”
11 and points to Final Instruction 7 which “states that when evidence is by circumstantial
evidence only, which it was here, then the evidence must be so conclusive and point so
convincingly to [Estes’s] guilt ‘that the evidence excludes every reasonable theory of
innocence.’” Id.
The State also acknowledges in its brief that this court has recently found reversible
error where the trial court rejected a defendant’s proffered jury instruction containing the
admonition that the jury is to attempt to fit the evidence to the presumption that the accused
is innocent. In Lee v. State, the trial court rejected the defendant’s proffered instruction
which was nearly identical to the first of Estes’s two tendered instructions he requested, and
it instead instructed the jury that Lee was presumed innocent, that the jury should keep an
“open mind,” that the State had the burden of proof, that if there was reasonable doubt, Lee
should be given the benefit of that doubt, and that in the face of conflicting evidence, the jury
might have to decide what testimony to believe and what testimony to disbelieve. 964
N.E.2d at 864. On appeal, this court recognized that the Indiana Supreme Court has
previously held where a defendant requests an instruction “which advises the jury that the
presumption of innocence prevails until the close of the trial, and that it is the duty of the jury
to reconcile the evidence upon the theory of the defendant’s innocence if they could do so,
must be given if requested.” Id. (quoting Robey v. State, 454 N.E.2d 1221, 1222 (Ind. 1983)
(citing Farley v. State, 127 Ind. 419, 26 N.E. 898 (1891); Simmons v. State, 179 Ind. App.
342, 385 N.E.2d 225 (1979))).
The Lee court held that the challenged jury instructions were inadequate to address the
presumption of innocence and observed that the balance of the instructions given by the court 12 and cited by the State as adequate were “in the context of reasonable doubt.” Id. at 865. In
so holding, the court specifically observed:
To the extent that the jury was instructed that it had to find each element beyond a reasonable doubt and that it was up to each juror to decide whom to believe regarding conflicting testimony, we find that such instructions do not satisfy Robey’s dictate that a jury be specifically instructed, if requested by a defendant, “that the jury should fit the evidence to the presumption that a defendant is innocent . . . .” Simpson v. State, 915 N.E.2d 511, 520 (Ind. Ct. App. 2009), trans. denied.
Id.
Here, the final instructions given by the trial court suffered from the same deficiencies
as in Lee. In particular, although the court instructed the jury in Final Instruction 6 that “if
you find conflicting testimony, you must determine which of the witnesses you will believe
and which of them you will disbelieve,” and that “[y]ou should give the greatest value to the
evidence you find most convincing,” such instructions do not adequately satisfy the Court’s
holding in Robey that, if requested, a jury must be instructed that presumption of innocence
prevails until the close of the trial and that, accordingly, the jury should fit the evidence to the
presumption that a defendant is innocent if possible.
To the extent that the State argues that there is no fatal infirmity in the instructions
given here because the jury was additionally instructed that proof by circumstantial evidence
must be so conclusive that it excludes every reasonable theory of innocence, we disagree. As
noted above, this instruction specifically stated that the jury was instructed that the evidence
must exclude every reasonable theory of innocence where proof of guilt is by circumstantial
evidence only. This is not equivalent to instructing the jury that the defendant’s presumption
13 of innocence prevails throughout trial. Nor is it equivalent to instructing the jury that it is its
duty to reconcile the evidence on the theory of the defendant’s innocence if it can do so.
Indeed, we note that recently, in Hampton v. State, the Indiana Supreme Court
recognized that this “every-reasonable-theory-of-innocence” instruction is deeply embedded
in Indiana jurisprudence and determined that it is required in cases where a trial court
determines that the State’s only proof of the actus reus of a charged crime is circumstantial
evidence. 961 N.E.2d 480, 490 (Ind. 2012). Importantly, the Hampton Court explained that
distinguishing between direct and circumstantial evidence is a difficult legal determination –
one our trial courts, not our juries, should make. Id. Because the instruction given at Estes’s
trial required the jurors to determine that the evidence was circumstantial before requiring
them to evaluate the evidence to exclude every reasonable theory of innocence, the
instruction does not meet the Hampton requirements.3
Also, the State’s reliance on another instruction given at Estes’s trial is similarly
misplaced. The State posits that the pattern instruction on the State’s burden of proof can
cure the instructional error here, arguing that the burden-of-proof instruction “said the same
thing” as an instruction to attempt to fit the evidence to the presumption of innocence.
Appellee’s Brief at 9. However, our case law holds that an instruction on the State’s burden
of proof cannot save an inadequate presumption-of-innocence instruction. See Vaughan v.
3 The Court held: “[W]hen the trial court determines that the defendant’s conduct required for the commission of a charged offense, the actus reus, is established exclusively by circumstantial evidence, the jury should be instructed as follows: In determining whether the guilt of the accused is proven beyond a reasonable doubt, you should require that the proof be so conclusive and sure as to exclude every reasonable theory of innocence.” Hampton, 961 N.E.2d at 491. In Estes’s case, the evidence of the actus reus was established by direct evidence. Therefore, even if the jurors were capable of making this difficult legal distinction, the instruction would not have been appropriate based on the State’s evidence. 14 State, 446 N.E.2d 1, 3 (Ind. Ct. App. 1983); see also Simmons, 179 Ind. App. at 344, 385
N.E.2d at 226. In Vaughan, we acknowledged that while presumption-of-innocence and
burden-of-proof instructions are “logically similar,” Indiana has “long required an instruction
both on the presumption of innocence and the State’s burden of proof.” 446 N.E.2d at 3
(citing Simmons, 179 Ind. App. at 343, 385 N.E.2d at 225; Long v. State, 46 Ind. 582
(1874)). We held that giving both instructions:
cautions the jury to put away from their minds all the suspicions that arise[] from the arrest, the indictment, and the arraignment and to reach their conclusions solely from the legal evidence adduced. Thus, Indiana has historically afforded the defendant more protection than is mandated by the Due Process Clause of the Fourteenth Amendment.
Id. (citations omitted).
Thus, similarly to our recent holding in Lee, we find that the instructions given by the
trial court did not satisfy Robey. However, our analysis does not end there for, as noted
above, the Lee court also observed that errors by the court regarding jury instructions are
subject to harmless error analysis, specifically noting that “[e]rrors in the giving or refusing
of instructions are harmless where a conviction is clearly sustained by the evidence and the
jury could not properly have found otherwise.” 964 N.E.2d at 862-863 (quoting Dill, 741
N.E.2d at 1233).
We first observe that in Lee, the defendant had been convicted of criminal
confinement and intimidation stemming from an incident in which the victim met the
defendant at a strip club, the victim called the defendant later that evening, and the victim
agreed to enter the defendant’s hotel room and drink alcohol. Id. at 860-861. On appeal, the
defendant argued, and we agreed, that the court’s error in not providing the instruction was 15 not harmless “because the evidence to support the convictions was equivocal and the jury
struggled to reach a verdict” and that the victim’s “testimony was inconsistent, contradictory
and, to a large degree, improbable . . . .” Id. at 863.
Here, however, we find that the court’s error was harmless because the evidence
presented of Estes’s guilt was overwhelming. As noted above, evidence was presented
establishing that Estes was arrested with a package in his vehicle containing five pounds of
marijuana. Estes asked Butters to accept the package, the transmitter showed that Estes
immediately picked up the package after he arrived at Butters’s residence, and he left the
residence about a minute later with the package. Also, a postal clerk testified that Estes
routinely sent similar-sized packages to California and used fake names when preparing the
package labels, and one such label was recovered from Estes’s vehicle. Also, a package sent
by Estes to a “Michael Ericson” and containing the fake return addressee “J. Long” was
intercepted and found to contain $9,910.00 in cash, the contact information from “Michael
Ericson” was found in Estes’s phone, and the State introduced postage records stating that in
one month Estes had received three packages from California weighing between six and
seven pounds, two of which had fictitious return addresses. Based upon the evidence
presented at trial, we conclude that the jury could not have properly found that Estes was
innocent of dealing in marijuana as a class D felony, and accordingly any error committed by
the court in instructing the jury was harmless.
III.
The final issue is whether Estes’s sentence is inappropriate in light of the nature of the
16 offense and the character of the offender.4 Ind. Appellate Rule 7(B) provides that we “may
revise a sentence authorized by statute if, after due consideration of the trial court’s decision,
[we find] that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” Under this rule, the burden is on the defendant to persuade the
appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006).
Estes argues that “[t]he nature of the offense Estes was convicted of does not give rise
to the imposition of the maximum sentence in this case.” Appellant’s Brief at 15. Estes
argues that the court at sentencing “seems to have rested its imposition of the maximum
sentence on Estes[’]s character,” noting in particular that he was on probation stemming from
4 Estes also appears to argue that the court abused its discretion when it sentenced him by relying upon aggravating factors not supported by the record, and he specifically argues that the court relied upon aggravators not proven to a jury in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), reh’g denied, and that although “this Court is bound by the decision of our Supreme Court in Anglemyer[v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)], he respectfully disagrees and argues that the trial court erred in considering aggravating factors not proven to a jury.” Id. at 16-17. Initially, we observe that “even if the trial court is found to have abused its discretion in the process it used to sentence the defendant, the error is harmless if the sentence imposed was not inappropriate.” Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007), trans. denied. Accordingly, we need not address this issue because we elect to exercise our option to review Estes’s sentence under Ind. Appellate Rule 7(B). See Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that where the court on appeal finds that a trial court abused its discretion in sentencing the defendant, the court may either remand for resentencing or exercise the appellate court’s authority to review the sentence under Ind. Appellate Rule 7(B)), reh’g denied.
However, we also note that the United States Supreme Court in Blakely held that the Sixth Amendment required a jury find beyond a reasonable doubt any fact used to aggravate a sentence beyond “the maximum [a judge] may impose without any additional findings.” 542 U.S. at 303-304, 124 S. Ct. at 2537. The Indiana Supreme Court has noted that Blakely was applicable to Indiana’s previous “presumptive” sentencing scheme and that in order to enhance a sentence under the presumptive scheme, “the sort of facts envisioned by Blakely as necessitating a jury finding must be found by a jury . . . .” Smylie v. State, 823 N.E.2d 679, 686 (Ind. 2005), cert. denied, 546 U.S. 976, 126 S. Ct. 545 (2005). However, Estes was sentenced according to Indiana’s “advisory” scheme which supplanted the “presumptive” scheme on April 25, 2005. Edrington v. State, 909 N.E.2d 1093, 1096 n.2 (Ind. Ct. App. 2009), trans. denied. As observed by the Indiana Supreme Court, the “advisory” sentencing scheme does not run afoul of the holdings of Blakely and Smylie, and to the extent that Estes’s argument depends on the contention that they do, we reject it. See Harris v. State, 897 N.E.2d 927, 928 (Ind. 2008). 17 a federal conviction, and he “request[s] this Court find the consideration of his Federal case
to be an abuse of discretion” due to the fact that “it was clear [he] would have to face a
potential violation of the same parole and had already been subjected to the Federal criminal
penalties.” Id. at 16.
Our review of the nature of the offense reveals that Estes was arrested with a box
containing five pounds of “high grade” marijuana in his vehicle. Transcript at 29. At the
time of arrest, his wallet and pants recovered from the vehicle’s trunk contained cash in the
amount of $1,681. A package sent by Estes to an address in California a day or two prior to
the arrest was intercepted and found to contain almost $10,000 in cash. Also, evidence was
presented at trial that Estes had been sending and receiving similar packages from California
in the months leading up to the arrest.
Our review of the character of the offender reveals that Estes has a criminal history
which includes offenses similar to the instant conviction. In 2002, Estes was ordered to pay a
fine and court costs on a conviction for illegal possession of an alcoholic beverage. In April
2003, he was sentenced to sixty days suspended for failure to stop after an accident resulting
in damage to a vehicle. In May 2003, he was ordered to pay a fine and court costs on a
conviction for minor consuming alcohol. In December 2003, Estes was apparently ordered to
pay a fine on a charge of possession of marijuana in Kentucky. In 2007, Estes was sentenced
to four years in federal prison followed by four years of supervised probation for a conviction
of conspiracy to possess with intent to distribute and to distribute 500 grams or more of
cocaine. He was serving probation on the federal conviction when he was arrested on the
instant charges. In addition, in November of 2011, after the arrest on the current charges but 18 prior to trial, Estes was arrested for disorderly conduct as a class B misdemeanor for an
incident occurring in the jail in which Estes “joined in” with other inmates to batter one
inmate who “may be mentally infirm.” Appellant’s Appendix at 255.
After due consideration, and especially in light of the fact that Estes was on probation
stemming from a drug dealing conspiracy conviction at the time of commission of the instant
offense, we cannot say that Estes’s sentence of three years for dealing in marijuana and
possession of marijuana is inappropriate.
CONCLUSION
For the foregoing reasons, we affirm Estes’s conviction and sentence for dealing in
marijuana as a class D felony and reverse and remand with instructions that the court vacate
Estes’s conviction for possession of marijuana as a class D felony based upon double
jeopardy principles.
Affirmed in part, reversed in part, and remanded.
VAIDIK, J., concurs.
BAILEY, J., dissents with separate opinion.
19 -
JAKE E. ESTES, ) ) Appellant-Defendant, ) ) vs. ) No. 39A01-1205-CR-214 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
BAILEY, Judge, dissenting
I believe that Estes has demonstrated reversible error in the refusal of his tendered jury
instructions and therefore respectfully dissent from the majority’s decision to affirm his
conviction.
Article 1, § 13(a) of the Indiana Constitution guarantees an accused person the right to
trial by an impartial jury. That right is essentially meaningless unless he is also entitled to
have the jury properly instructed on how to perform its core function, that is, how to evaluate
the evidence in reaching the ultimate determination of guilt or innocence. I believe that Estes
20 was denied due process when the trial court refused his instructions on the continuous
presumption of innocence and reconciliation of conflicting evidence.
The presumption of innocence is a bedrock principle underlying criminal proceedings.
Instruction as to the continuous presumption of innocence and the jury’s duty to reconcile
evidence in the defendant’s favor if it can be does not merely address the State’s burden of
proof. It instructs the jury on how to evaluate the evidence from whatever source (whether
from the State, the defendant, in direct form, or in circumstantial form).
Our case law – going back as far as our Supreme Court’s decision in Farley v. State,
127 Ind. 419, 26 N.E.2d 898 (1891), to the more recent Robey v. State, 454 N.E.2d 1221,
1222 (Ind. 1983), and continuing to this Court’s decisions in Simpson v. State, 915 N.E.2d
511, 519-20 (Ind. Ct. App. 2009), trans. denied, and Lee v. State, 964 N.E.2d 859, 865 (Ind.
Ct. App. 2012), trans. denied – establishes the need to instruct jurors not only on the
presumption of innocence, but also on the presumption’s function: in other words, jurors
should be told how to reconcile the evidence before them in light of the presumption of
innocence. Indeed,
An instruction of this character which advises the jury that the presumption of innocence prevails until the close of the trial, and that it is the duty of the jury to reconcile the evidence upon the theory of the defendant’s innocence if they could do so, must be given if requested.
Robey, 454 N.E.2d at 1222 (citing Farley, 127 Ind. at 419, 26 N.E. at 899; Simmons v. State,
179 Ind. App. 342, 385 N.E.2d 225 (1979)). In using the word “must,” the Court employed a
mandatory term. I do not anticipate that there are circumstances in which an explicit request
for such an instruction should be refused. It was error for the trial court to refuse Estes’s
21 request that the jury be instructed that the presumption of innocence prevails throughout trial
and it is the jury’s duty to reconcile evidence on the theory of innocence if the jury can do so.
Here, the jury was instructed if it (first) found a reasonable doubt, it could then give
Estes the benefit of that doubt. The jury was also instructed that the evidence must exclude
every reasonable theory of innocence where proof of guilt is by circumstantial evidence only.
(App. 235.) (emphasis added.) As such, the jury was instructed that there is a predicate for
favoring the defendant’s evidence; this is clearly not equivalent to instructing the jury that it
is their duty to reconcile the evidence on the theory of the defendant’s innocence if it can do
so. Nor was the jury expressly instructed that the presumption of innocence continues
I agree with the majority that an appellant is not automatically entitled to reversal in
the face of instructional error. Rather, we must disregard error which does not affect the
appellant’s substantial rights. Ind. Trial Rule 61. As such, it is necessary to look to the
evidentiary record to determine whether the omission was harmless error in Estes’s case.
The State’s theory was that Estes took possession of the box with full knowledge of
the nature of its contents. In furtherance of this theory, the State presented eyewitness
testimony that Estes was seen carrying the box. The State also presented circumstantial
evidence suggesting he had anticipated a marijuana delivery and attempted to pay for the
product. Estes testified in his own defense, providing direct evidence that he had been in
possession of the box while denying his knowledge of its contents.5 He claimed to have
5 There are indications that Estes may have been involved in an ongoing enterprise. However, while evidence of labels with fictitious addresses may have been relevant to Estes’s knowledge of the contents of the box delivered to Butters, the jury was not – strictly speaking – charged with determining whether or not Estes 22 acted on behalf of Butters; she testified and denied any such arrangement. This is not a
situation where the evidence – whether direct or circumstantial – points overwhelmingly
toward a single scenario. The jury was asked to choose between competing scenarios. It is
in these circumstances that an instruction regarding reconciliation of evidence in the
defendant’s favor is particularly appropriate. The omission of appropriate instructions is not
harmless. As such, I would vote to reverse and remand for retrial.
had committed any other crime. 23