Kenneth Garretson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 4, 2020
• Docket: 19A-CR-2750
• 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 Jun 04 2020, 11:34 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Aubrey J. Crist Matthew B. MacKenzie Beasley & Gilkison, LLP Deputy Attorney General Muncie, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kenneth Garretson, June 4, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2750 v. Appeal from the Wayne Circuit Court State of Indiana, The Honorable David Kolger, Appellee-Plaintiff. Judge Trial Court Cause No. 89C01-1805-F2-12

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020 Page 1 of 13 STATEMENT OF THE CASE [1] Appellant-Defendant, Kenneth Garretson (Garretson), appeals following his

conviction for possession of methamphetamine, a Level 4 felony, Ind. Code §

35-48-4-6.1(c), and his admission to being an habitual offender, I.C. § 35-50-2-8.

[2] We affirm.

ISSUES [3] Garretson presents the court with two issues, which we restate as the following:

(1) Whether the trial court abused its discretion when it admitted certain evidence; and

(2) Whether the trial court abused its discretion when it identified and weighed the mitigating circumstances at sentencing.

FACTS AND PROCEDURAL HISTORY [4] On May 18, 2018, around 3:00 a.m., Office Ryan Gray (Officer Gray) of the

Richmond Police Department was on patrol in his cruiser when he observed a

red Geo Tracker driving straight toward him going the wrong way down South

A Street, which had been reduced to one lane due to construction. Officer Gray

activated his emergency lights, and the driver of the Geo Tracker, later

identified as Michael Mengedoht (Mengedoht), pulled off into a parking lot to

avoid hitting Officer Gray’s vehicle. Officer Gray initiated a traffic stop. From

his vantage point, Officer Gray could see Mengedoht and his passenger,

Garretson, moving around in the front seat. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020 Page 2 of 13 [5] Officer Gray approached Garretson’s passenger-side window. Garretson would

not make eye contact with Officer Gray, but he eventually rolled down his

window. Officer Gray immediately detected the odor of raw marijuana, and he

observed loose marijuana and rolling papers on Mengedoht’s lap. Garretson

provided Officer Gray with a name which the officer determined through a

database check was false. Officer Gray removed Mengedoht and Garretson

from the vehicle and searched it. Officer Gray discovered 15.81 grams of

methamphetamine in a baggie hidden under the rubber boot cover protecting

the vehicle’s gear shift.

[6] After discovering the methamphetamine, Mengedoht and Garretson were

separated and provided with their Miranda advisements. Mengedoht denied

ownership of the methamphetamine and invoked his right to counsel. Officer

Gray questioned Garretson, who initially denied ownership of the

methamphetamine. After Officer Gray asked Garretson again about the

methamphetamine, Garretson told the officer that it was his, he had hidden it

under the rubber boot without Mengedoht’s knowledge, and that they had

travelled to Dayton, Ohio, earlier in the day to procure the methamphetamine.

After Garretson had made these admissions, Officer Gray asked Garretson why

he and Mengedoht were in Richmond so early in the morning. Garretson

stated that he did not wish to say anything else.

[7] On May 18, 2018, the State filed an Information, charging Garretson with

Level 2 felony dealing in methamphetamine and Level 4 felony possession of

methamphetamine. The State also alleged that Garretson was an habitual

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020 Page 3 of 13 offender. On September 16, 2019, the trial court granted the State’s motion to

dismiss the dealing charge. Mengedoht had also been charged with

methamphetamine possession and pleaded guilty to the charge as a Level 5

felony. As part of Mengedoht’s testimony establishing the factual basis for his

guilty plea, he stated that he and Garretson had jointly possessed the

methamphetamine. Thereafter, in a deposition taken in preparation for

Garretson’s trial, Mengedoht stated that the methamphetamine was his. The

State subsequently charged Mengedoht with perjury.

[8] On September 23, 2019, the trial court convened Garretson’s two-day jury trial.

Garretson did not object when Officer Gray testified about Garretson’s

admissions during the traffic stop that the methamphetamine was his.

Garretson called Mengedoht as a witness, but Mengedoht invoked his Fifth

Amendment right. Garretson had records from Mengedoht’s criminal case

admitted into evidence showing that Mengedoht had pleaded guilty to Level 5

felony methamphetamine possession. During closing argument, the deputy

prosecutor argued that, even though Mengedoht had been convicted of

possessing the methamphetamine found in the vehicle, two people could jointly

possess the same drugs, and, thus, the jury could also convict Garretson for

possessing the methamphetamine. During his closing statements, Garretson’s

counsel asked the jury several times why Mengedoht would have pleaded guilty

if the methamphetamine was not his. The jury found Garretson guilty of

methamphetamine possession, and Garretson admitted that he had the two

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020 Page 4 of 13 prior, unrelated felony convictions alleged by the State in the habitual offender

Information.

[9] On October 24, 2019, the trial court held Garretson’s sentencing hearing.

Garretson expressed dissatisfaction with his counsel’s performance, and

Garretson’s counsel moved to withdraw due to a breakdown of communication

with his client. After Garretson’s counsel confirmed that he had adequately

prepared for the hearing and Garretson’s claim that his counsel had withheld

discovery materials from him was proven to be inaccurate, the trial court denied

counsel’s motion to withdraw. During his allocution, Garretson stated that at

the time of his arrest his liver and kidneys were failing and that, as a result, he

was “delusional” and in an “unstable state of mind[.]” (Transcript p. 213).

Garretson denied telling Officer Gray that the methamphetamine found in the

Geo Tracker belonged to him.

[10] The trial court found as mitigating circumstances that Garretson had admitted

that he was an habitual offender and that his offense had not caused, nor had it

threatened to cause, serious harm. The trial court accorded those mitigating

circumstances minimal weight. The trial court found as an aggravating

circumstance that Garretson had four prior felony convictions, three of which

were for drug-related offenses, and that Garretson had failed to take advantage

of the various forms of rehabilitative sentences that had been accorded him.

The trial court found as additional aggravating circumstances that Garretson

was on pre-trial release and probation when he committed the instant offense,

he was affiliated with a gang, and he had incurred thirty-five major rule

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020 Page 5 of 13 violations in jail while awaiting trial. The trial court found that the aggravating

circumstances “far, far, far exceed[ed]” the mitigators. (Tr. p. 227). The trial

court sentenced Garretson to eight years for his possession of

methamphetamine conviction, enhanced by twelve years for being an habitual

offender.

[11] Garretson now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Admission of Evidence

A. Inculpatory Statements

[12] Although Garretson claims that his inculpatory statements to Officer Gray

“should have been suppressed” because they were involuntary, this appeal

occurs after trial, and, therefore, the issue is more properly framed as whether

the trial court abused its discretion when it admitted those statements into

evidence at trial. (Appellant’s Br. p. 9). Decisions to admit or exclude evidence

are within the sound discretion of the trial court. Wright v. State, 108 N.E.3d

307, 313 (Ind. 2018). Accordingly, we afford those decisions deference and will

reverse only upon an abuse of the trial court’s discretion and upon that error

affects the defendant’s substantial rights. Id. However, issues implicating

constitutional questions, such as the voluntariness of a confession, are reviewed

de novo. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). Upon review of a

challenge to a trial court’s admission of a confession, we do not reweigh the

evidence, and we examine the record for substantial, probative evidence of

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020 Page 6 of 13 voluntariness. Ringo v. State, 736 N.E.2d 1209, 1211 (Ind. 2000). In addition,

we consider only the evidence most favorable to the trial court’s ruling. Pruitt v.

State, 834 N.E.2d 90, 115 (Ind. 2005).

[13] We also observe that Garretson failed to object to the admission of the

challenged evidence at trial. As a general rule, the failure to object at trial to the

admission of evidence waives any claims of error unless fundamental error can

be established. Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011). Fundamental

error is a “very narrow” exception to the waiver rule and consists of error that

“make[s] a fair trial impossible or constitute[s] a clearly blatant violation of

basic and elementary principles of due process presenting an undeniable and

substantial potential for harm.” Kelly v. State, 122 N.E.3d 803, 805 (Ind. 2019).

[14] Before addressing the voluntariness of Garretson’s statements, we pause to note

that, in his Statement of the Issues and the caption of his Summary of the

Arguments, Garretson claims that he was deprived of his right to the effective

assistance of counsel. However, Garretson did not provide us with a standard

of review for that claim, as necessitated by Indiana Appellate Rule 46(A)(8)(b),

nor did he develop any substantive argument supporting that claim in the body

of his brief. Failure to support an argument with cogent reasoning and citations

to legal authority or the record results in waiver of a claim. Ind. Appellate Rule

46(A)(8)(a); Griffith v. State, 59 N.E.3d 947, 958 n.5 (Ind. 2016). We conclude

that Garretson has waived his ineffective assistance of counsel claim.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020 Page 7 of 13 [15] As to the substance of his argument, Garretson contends that his statements

were “coerced.” (Appellant’s Br. p. 9). The Fifth Amendment’s privilege

against self-incrimination applies to the states through the Fourteenth

Amendment. Withrow v. Williams, 507 U.S. 680, 689, 113 S.Ct. 1745, 123

L.Ed.2d 407 (1993). In addition, Article I, Section 14 of our state constitution

provides that “[n]o person, in any criminal prosecution, shall be compelled to

testify against himself.” Part of these constitutional protections is that, in order

for a defendant’s statement to be admissible at trial against him, it must have

been given voluntarily. Wright v. State, 916 N.E.2d 269, 277 (Ind. Ct. App.

2009), trans. denied. Under state law, when a defendant challenges the

voluntariness of his confession, the State must prove beyond a reasonable doubt

that the confession was given voluntarily. Jackson v. State, 735 N.E.2d 1146,

1153 n.4 (Ind. 2000). The voluntariness of a defendant’s statement is

determined by examining the totality of the circumstances, including any

violence, threats, promises or other improper influences brought to bear to bring

about the statement. Luckhart v. State, 736 N.E.2d 227, 229 (Ind. 2000).

Factors to be considered are “‘any element of police coercion; the length,

location, and continuity of the interrogation; and the maturity, education,

physical condition, and mental health of the defendant.’” Weisheit v. State, 26

N.E.3d 3, 18 (Ind. 2015) (quoting Wilkes v. State, 917 N.E.2d 675, 680 (Ind.

2009)).

[16] Here, Garretson made his statements to Officer Gray during a brief

conversation after having been provided with his Miranda advisements.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020 Page 8 of 13 Garretson contends that his confession was involuntary because “he was under

an immense amount of stress and pressure due to an ongoing issue with his

mother and his own ongoing health problems” and because he was intoxicated.

(Appellant’s Br. p. 7). However, Garretson does not support either of these

contentions with citations to the record. Our own review of the trial transcript

and exhibits uncovered no evidence of Garretson’s mental health, physical

health, or intoxication that was introduced at trial.

[17] Garretson also contends that his confession was involuntary because Officer

Gray continued to question him after he initially denied the methamphetamine

belonged to him and after Mengedoht invoked his right to counsel. However,

Garretson did not invoke his right to remain silent or indicate to Officer Gray in

any way that he did not wish to continue to speak to the officer after he had

initially denied ownership of the methamphetamine. The right to silence must

be enunciated; it is not self-executing. See Wilkes, 917 N.E.2d at 682 (“An

assertion of the Miranda right to remain silent must be clear and unequivocal.”).

In addition, Garretson does not explain how Mengedoht’s invocation of his

right to counsel made Garretson’s statements involuntary, and we are unaware

of any legal support for this contention. Accordingly, we conclude that there

was no evidence before the trial court that indicated that Garretson’s statements

were involuntary and, therefore, Garretson has failed to establish fundamental

error occurred.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020 Page 9 of 13 B. References to Mengedoht’s Conviction

[18] Garretson argues that the State impermissibly used evidence of Mengedoht’s

conviction to convict him. Garretson contends that Mengedoht’s “admission

and conviction on the underlying possession of methamphetamine charge was

brought up quite frequently throughout trial.” (Appellant’s Br. p. 11).

However, the only evidence of Mengedoht’s conviction introduced at trial was

done so by Garretson himself to further his defense theory that only Mengedoht

possessed the methamphetamine. Contrary to Garretson’s assertion on appeal,

Officer Gray did not refer to Mengedoht’s conviction in his direct testimony.

Because it was Garretson who introduced the evidence he now challenges on

appeal, we do not find his argument to be persuasive. See Kingery v. State, 659

N.E.2d 490, 494 (Ind.1995) (“A party may not invite error, then later argue that

the error supports reversal, because error invited by the complaining party is not

reversible error.”).

[19] In this portion of his argument, Garretson also contends that the State

improperly emphasized Mengedoht’s conviction during closing statements

when the deputy prosecutor argued to the jury that he and Mengedoht jointly

possessed the methamphetamine. Garretson did not object to this argument at

trial, request an admonishment, or move for a mistrial, and so it is waived.

Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). On appeal, Garretson does not

argue that the now-challenged references to Mengedoht’s conviction constituted

fundamental error. In addition, Garretson does not provide us with a standard

of review for a claim of prosecutorial misconduct, nor does he support his

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020 Page 10 of 13 argument with cogent reasoning or legal authority. We conclude, therefore,

that Garretson has also waived this claim for failing to adequately develop his

appellate argument. See App. R. 46(A)(8)(a). His waiver of the issue

notwithstanding, the deputy prosecutor’s argument was a correct statement of

the law. See Massey v. State, 816 N.E.2d 979, 989 (Ind. Ct. App. 2004)

(observing that possession of contraband by a defendant need not be exclusive

and that it can be possessed jointly). The deputy prosecutor’s argument was

also in direct response to Garretson’s defense theory and repeated arguments to

the jury that Mengedoht would not have pleaded guilty to possession of

methamphetamine if the drugs had not been his and, therefore, any claimed

error was also invited. See Kingery, 659 N.E.2d at 490.

II. Sentencing

[20] Garretson challenges the sentence imposed by the trial court. Although he cites

our authority under the Indiana constitution and Indiana Appellate Rule 7(B)

to independently review the inappropriateness of his sentence, he develops no

substantive argument regarding the nature of his offenses and his character.

Garretson also challenges his sentence on the ground that the trial court erred

when it refused to allow his sentencing counsel to withdraw prior to his

sentencing hearing. Garretson utterly fails to support this argument with any

citation to legal authority or citations to the record. Given his failure to

adequately support these appellate arguments with cogent reasoning and

citations to legal authority or the record, Garretson has waived any claim

regarding the inappropriateness of his sentence or the propriety of the trial

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020 Page 11 of 13 court’s decision to refuse to allow his counsel to withdraw. See App. R.

46(A)(8)(a).

[21] The gravamen of Garretson’s remaining argument regarding his sentence is that

the trial court abused its discretion when it identified and weighed the

mitigating circumstances. Under our current sentencing scheme, so long as a

sentence imposed by a trial court is within the statutory range for the offense, it

is 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 (Ind. 2007). An

abuse of the trial court’s sentencing discretion occurs if its decision is clearly

against the logic and effect of the facts and circumstances before the court, or

the reasonable, probable, and actual deductions to be drawn therefrom. 868

N.E.2d at 490. One way that a trial court may abuse its discretion is when its

sentencing statement omits reasons that are clearly supported by the record and

advanced for consideration. Id. at 490-91. However, because trial courts are no

longer required to weigh aggravating and mitigating circumstances, the weight

accorded to those circumstances is no longer subject to our review. Id. at 491.

[22] Garretson argues that the trial court should have accorded more weight to the

fact that his offense did not cause, nor did it threaten to cause, serious harm.

However, the trial court recognized this factor as mitigating, although it

declined to extend it much significance for sentencing. We cannot credit

Garretson’s argument because we no longer review the relative weight assigned

by a trial court to mitigating circumstances. Id.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020 Page 12 of 13 [23] Garretson also contends that the trial court improperly turned his cooperation

with law enforcement from a mitigator into an aggravator and that more weight

should have been accorded to his poor physical health. Our review of the trial

court’s sentencing statement revealed that the trial court considered and

rejected both proposed mitigators. The trial court observed that Garretson

initially provided Officer Gray with an inaccurate name and that, although

Garretson stated during his allocution that he suffered from kidney and liver

failure at the time of the offenses, he did not report any physical issues to the

pre-sentence investigator. Therefore, we cannot say that these factors were

clearly supported by the record or that the trial court abused its discretion by

failing to identify them as mitigating circumstances. Id. at 490-91.

CONCLUSION [24] Based on the foregoing, we conclude that the trial court did not abuse its

discretion when it admitted the challenged evidence at trial or when it identified

and weighed the mitigating circumstances at sentencing.

[25] Affirmed.

[26] Mathias, J. and Tavitas, J. concur

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2750 | June 4, 2020 Page 13 of 13