Javon L. Bonner v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: January 9, 2012
• Docket: 20A03-1107-CR-330
• Status: Unpublished

Opinion

FILED 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 Jan 09 2012, 8:20 am establishing the defense of res judicata, collateral estoppel, or the law of the CLERK of the supreme court, court of appeals and case. tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

DONALD R. SHULER GREGORY F. ZOELLER Barkes Kolbus & Rife, LLP Attorney General of Indiana Goshen, Indiana

AARON J. SPOLARICH Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JAVON L. BONNER, ) ) Appellant-Defendant, ) ) vs. ) No. 20A03-1107-CR-330 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE ELKHART CIRCUIT COURT The Honorable Terry C. Shewmaker, Judge Cause No. 20C01-1007-FA-19

January 9, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge Case Summary

Javon Bonner appeals his conviction for Class A felony dealing in cocaine as well

as his fifty-year sentence for that offense and his convictions for Class C felony operating

a vehicle with a lifetime suspension and Class A misdemeanor resisting law enforcement.

We affirm.

Issues

The issues before us are:

I. whether there is sufficient evidence to support Bonner’s conviction for Class A felony dealing in cocaine; and

II. whether his fifty-year sentence is inappropriate.

Facts

On July 21, 2010, Officer Andrew Whitmyer of the Elkhart Police Department

was on patrol when he observed a vehicle make a turn at an intersection without having

signaled sufficiently in advance of the turn. Officer Whitmyer activated his lights and

attempted to pull the vehicle over for this traffic infraction, but the driver—Bonner—did

not immediately stop. Instead, Bonner pulled into a driveway, got out of the car, and

began running. Officer Whitmyer eventually chased Bonner down on foot and arrested

him. Bonner had been the sole occupant of the car. Additionally, Bonner’s driver’s

license had previously been suspended for life.

Bonner had a strong odor of burnt marijuana emanating from him when he was

arrested. After other officers detained Bonner, Officer Whitmyer walked back along the

2 path he had chased Bonner, looking to see if Bonner had dropped anything along the

way, but found nothing. Officer Whitmyer also noticed that the car Bonner had been

driving was emitting a strong marijuana odor, and he proceeded to search the car. In a

console of the car Officer Whitmyer found a plastic bag containing several smaller

individual plastic bags, each containing a white rock-like substance. The substance was

later tested and confirmed to be crack cocaine, with the total weight being 28.85 grams.

Police recovered no cash, scales, or other items commonly associated with drug dealing

from the car, nor did they find any paraphernalia for using crack in the car or on Bonner’s

person. Police did not search Bonner’s residence.

The State charged Bonner with Class A felony dealing in cocaine, Class C felony

operating a vehicle with a lifetime suspension, and Class A misdemeanor resisting law

enforcement. After a jury trial held Bonner was found guilty as charged. The trial court

sentenced Bonner to forty-five years for the cocaine conviction and five years for the

driving conviction, to be served consecutively for a total sentence of fifty years. It also

sentenced Bonner to one year for the resisting conviction to be served concurrently with

the other sentences. Bonner now appeals.

Analysis

I. Sufficiency of the Evidence

Bonner first challenges the sufficiency of the evidence supporting his conviction

for Class A felony dealing in cocaine. When reviewing the sufficiency of the evidence to

support a conviction, we do not reweigh the evidence or judge the credibility of the

3 witnesses, and respect the fact-finder’s exclusive province to weigh conflicting evidence.

Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the probative

evidence and reasonable inferences therefrom that support the conviction. Id. We will

affirm if the probative evidence and reasonable inferences from that evidence could have

allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.

Id.

To convict Bonner of Class A felony dealing in cocaine as alleged in the charging

information, the State was required to prove that he possessed three or more grams of

cocaine with the intent to deliver it. See Ind. Code § 35-48-4-1(a)(2)(C), (b)(1). Bonner

challenges only the sufficiency of the evidence that he intended to deliver the crack

cocaine found in his car. He does not contest the weight of the cocaine or argue that he

did not possess it, but rather essentially claims that it was intended for his own personal

use and not for dealing to others.

The intent to deliver cocaine in one’s possession may be proven by either direct or

circumstantial evidence. Davis v. State, 863 N.E.2d 1218, 1220 (Ind. Ct. App. 2007),

trans. denied. Intent concerns a person’s state of mind, and a fact finder may infer

whether intent exists from the surrounding circumstances. Id. Of specific relevance to

this case, “[p]ossession of a large amount of an illegal drug is circumstantial evidence of

intent to deliver.” Valle v. State, 550 N.E.2d 746, 748 (Ind. 1990). It also is relevant if a

person found in possession of a significant quantity of drugs is not also found in

4 possession of the means to ingest the drug. See Love v. State, 741 N.E.2d 789, 792 (Ind.

Ct. App. 2001).

Here, the jury heard detailed testimony from a police detective, Jeff Eaton, with

extensive experience in illegal drug investigations. Detective Eaton testified that the

amount of cocaine found in Bonner’s possession, which approximately was one ounce,

would cost approximately $800 to $1500 on the street and was consistent with what a

“middleman” drug dealer would be expected to possess, and not what a personal user

ordinarily would possess. Tr. p. 141. Detective Eaton also explained that individual

“eight balls” of crack cocaine commonly were delivered by dealers in the cut-off corners

of plastic sandwich bags, similar to how the crack was found packaged in Bonner’s car.

Id. at 139. Detective Eaton also testified that if a person in possession of crack cocaine is

not found to be in possession of paraphernalia to use the drug, then it points toward the

person intending to deal the drug rather than use it. Finally, Detective Eaton explained

that a regular user of crack cocaine would be unlikely to possess an ounce of the drug,

because such users tend to buy small amounts of the drug—a couple of grams at a time at

the most—and immediately use it.

Despite Detective Eaton’s testimony, Bonner asserts that it is inappropriate to

affirm his conviction solely on the basis of the amount of cocaine he possessed and in the

absence of any evidence that he possessed other common indicia of drug dealing, such as

a large quantity of cash, scales, and the like. He notes that in Love, which the State cites,

we affirmed a conviction for possession of cocaine with intent to deliver upon evidence

5 that the defendant possessed 11.3 grams of the drug but no means to ingest it, plus $331

in cash. Love, 741 N.E.2d at 792.

However, this court has in fact upheld convictions for drug dealing based upon

evidence virtually identical to, or even less than, the evidence in this case. In Davis v.

State, 791 N.E.2d 266, 270 (Ind. Ct. App. 2003), trans. denied, we affirmed a conviction

for dealing in crack cocaine where the defendant possessed 5.6225 grams of the drug,

there was police officer testimony explaining that such a quantity was inconsistent with

personal usage, and the crack had been individually packaged in a manner consistent with

drug dealing. Bonner possessed approximately five times the amount of crack cocaine as

the defendant in Davis, there was similar police officer testimony explaining that

possession of that amount of the drug was inconsistent with personal use, the crack rocks

likewise were individually packaged in a manner indicative of drug dealing, and there

was no drug use paraphernalia found in Bonner’s car, on his person, or along the route

from which he had run from Officer Whitmyer. Based upon this evidence, the jury was

entitled to conclude that Bonner possessed the 28.85 grams of cocaine with intent to

deliver it, and there is sufficient evidence to support his conviction for Class A felony

dealing in cocaine. See also Hirshey v. State, 852 N.E.2d 1008, 1015-16 (Ind. Ct. App.

2006) (affirming conviction for possession of methamphetaime with intent to deliver

solely upon evidence that defendant possessed 9.56 grams of the drug, which was broken

down into individual packages and was an amount inconsistent with personal usage),

trans. denied.

6 II. Sentence

Bonner also contends that his aggregate fifty-year sentence is inappropriate under

Indiana Appellate Rule 7(B) in light of his character and the nature of the offenses.

Although Rule 7(B) does not require us to be “extremely” deferential to a trial court’s

sentencing decision, we still must give due consideration to that decision. Rutherford v.

State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and recognize the

unique perspective a trial court brings to its sentencing decisions. Id. “Additionally, a

defendant bears the burden of persuading the appellate court that his or her sentence is

inappropriate.” Id.

The principal role of 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). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

crime, the damage done to others, and myriad other factors that come to light in a given

case. Id. at 1224.

Bonner argues that there is nothing particularly egregious about his offenses.

Indeed, there was no violence associated with his crimes or any harm indicated beyond

that normally associated with these type of offenses. We agree that there is nothing

7 remarkable about his crimes. However, “revision of a sentence under Indiana Appellate

Rule 7(B) requires the appellant to demonstrate that his sentence is inappropriate in light

of both the nature of his offenses and his character.” Williams v. State, 891 N.E.2d 621,

633 (Ind. Ct. App. 2008). And, when it comes to Bonner’s character, we can find nothing

positive to say about it or find anything that would warrant us in concluding that his fifty-

year sentence is inappropriate.

Bonner has amassed a disturbingly lengthy and detailed criminal history. He was

first adjudicated a delinquent child in 1995, when he was twelve years old, for what

would have been Class C felony attempted robbery if committed by an adult. He has

eight additional delinquency adjudications on his record for theft, battery, fleeing a police

officer, possession of marijuana, operating while intoxicated, resisting law enforcement,

driving without a license, and illegal consumption of alcohol.1 Bonner’s adult criminal

history includes five felony convictions and at least ten misdemeanor convictions. That

history began in 1998 and includes felony convictions for possession of cocaine, resisting

law enforcement, escape, and driving as an habitual traffic offender twice. He has

misdemeanor convictions for resisting law enforcement, three times for possession of

marijuana, and at least six times for driving while suspended or without having a license.

As an adult, Bonner was often treated with leniency after his convictions and was given

numerous opportunities to be placed on probation or in various community corrections,

home detention, or work release programs. However, he violated the conditions of these 1 This does not include delinquency adjudications Bonner amassed for status offenses such as truancy and curfew violations. 8 alternative placements repeatedly—at least ten times, by our count. In fact, he was on

probation when he committed the present offenses. Bonner also had a pending charge of

Class D felony escape when he was sentenced in this case.

Bonner attempts to minimize the extent of his criminal history by claiming that

most of his delinquency adjudications or convictions were for “minor” offenses,

including traffic offenses. Reply Br. p. 5. We acknowledge that the weight given to a

defendant’s criminal history “is measured by the number of prior convictions and their

gravity, by their proximity or distance from the present offense, and by any similarity or

dissimilarity to the present offense that might reflect on a defendant’s culpability.”

Bryant v. State, 841 N.E.2d 1154, 1156 (Ind. 2006). Here, Bonner’s criminal record

reflects that he has been breaking the law on a virtually continuous basis since 1995,

when he was twelve. As the trial court noted, aside from Bonner’s documented

delinquency adjudications and convictions, he also has admitted to using marijuana since

the age of fifteen and cocaine since the age of seventeen. The sheer number of Bonner’s

adjudications, convictions, violations of alternative placements, and repeated usage of

illegal drugs demonstrates a complete and utter lack of respect for the law. He has been

given numerous opportunities to become a law-abiding citizen but has failed to do so.

Moreover, even Bonner’s allegedly “minor” convictions and adjudications for possession

of marijuana or for driving offenses are directly relevant to his present substance abuse

and driving-related convictions.

9 Bonner notes that the trial court found his age to be a mitigating circumstance.

Regardless, we cannot say that his age—twenty-eight at the time of these offenses—is

due any consideration in our Rule 7(B) analysis. Simply put, twenty-eight is not an

“impressionable” age, such that it should be considered a reason for lessening Bonner’s

sentence. This is especially true, in that given Bonner’s continuous involvement in the

criminal justice system for fifteen years, he cannot in any way be described as naïve.

Bonner also contends that some consideration should be given to his admission

that he has a substance abuse problem. We disagree. That Bonner has a substance abuse

problem stretching back at least a decade is evident from the presentence report.

Nonetheless, it does not appear Bonner has taken any steps to undergo treatment for his

addiction or addictions. It is appropriate to reject a claim of substance abuse as a

mitigating sentencing consideration when there is evidence the defendant was aware of a

substance abuse problem but did not take positive steps to treat the addiction. Bryant v.

State, 802 N.E.2d 486, 501 (Ind. Ct. App. 2004), trans. denied.

Finally, we note Bonner’s argument that he allegedly offered to help police

investigate a hit-and-run crime as evidence of positive character. It appears, however,

that Bonner only offered this assistance after being arrested for this crime and being

charged with a Class A felony, and not before. In that light, the offer of assistance—

which in any event the police did not need—carries very little weight, in that it could be

construed as an attempt to curry favor with the police and prosecutor and not purely

altruistic.

10 Here, the trial court evidently believed that Bonner had exhausted his chances at

reform. We cannot say it was improper to reach such a conclusion, nor can we say that it

is inappropriate in light of Bonner’s character to require him to serve a fifty-year prison

sentence for his current offenses.

Conclusion

There is sufficient evidence to support Bonner’s conviction for Class A felony

dealing in cocaine and his fifty-year sentence is not inappropriate. We affirm.

Affirmed.

KIRSCH, J., and BRADFORD, J., concur.