Larry Eugene Reust, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 28, 2020
• Docket: 20A-CR-729
• 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 court except for the purpose of establishing Jul 28 2020, 10:43 am

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 ATTORNEYS FOR APPELLEE Justin R. Wall Curtis T. Hill, Jr. Wall Legal Services Attorney General of Indiana Huntington, Indiana Steven Hosler Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Larry Eugene Reust, Jr., July 28, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-729 v. Appeal from the Huntington Circuit Court State of Indiana, The Honorable Davin G. Smith, Appellee-Plaintiff Judge Trial Court Cause No. 35C01-1910-F3-338

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020 Page 1 of 8 [1] Larry Reust, Jr., appeals his conviction and the sentence imposed by the trial

court for Level 3 Felony Possession of a Narcotic Drug, 1 arguing that the

evidence was insufficient to support the conviction and that the sentence was

inappropriate in light of the nature of the offense and his character. Finding the

evidence sufficient and the sentence not inappropriate, we affirm.

Facts [2] On October 22, 2019, Huntington County Sheriff’s Department Deputy Jamin

Sands transported Reust to the Huntington County Jail to be booked for an

unrelated crime. While Deputy Sands was reading Reust the arrest warrant, he

noticed that Reust “appeared to be adjusting his pants.” Tr. Vol. III p. 114.

Then, Special Deputy Joshua Platt took Reust to a dressing room so that he

could change into a jail uniform. Deputy Platt decided to strip search Reust by

asking him to “bend over and squat and cough.” Id. at 119. After Reust twice

failed to complete the procedure, he eventually did what Deputy Platt

requested.

[3] It was at this point that Deputy Platt “was able to see the end of a plastic baggie

near his rectum.” Id. Deputy Platt asked Reust to remove the baggie and hand it

to him; Reust complied. Deputy Platt handed the plastic baggie to Deputy

Sands, and while doing so, he noticed that the plastic baggie contained a

“brown substance.” Id. at 120. Deputy Sands then placed the baggie in a secure

1 Ind. Code § 35-48-4-6(a), -6(d)(2).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020 Page 2 of 8 evidence locker and eventually sent it off to the Indiana State Police Laboratory

to be tested. A representative from the lab reported that the substance was a

combination of heroin and tramadol and that it weighed a total of 13.55 grams.

[4] On October 23, 2019, the State charged Reust with one count of Level 3 felony

possession of a narcotic drug due to a prior conviction for dealing in a

controlled substance. The State also alleged that Reust was an habitual

offender. On November 3, 2019, Special Deputy Sidney Jeffers spoke with

Reust on an unrelated matter, and during that conversation, Reust told Deputy

Jeffers that “when he came to the jail—initially came into the jail—that he had

brought heroin inside of his butt checks.” Id. at 150-51.

[5] Following Reust’s March 10-11, 2020, trial, the jury found him guilty as

charged. Additionally, Reust admitted to being an habitual offender. On March

24, 2020, the trial court sentenced Reust to twelve years in the Department of

Correction (DOC) for the Level 3 felony conviction, with an additional thirteen

years imposed for the habitual offender enhancement, for an aggregate term of

twenty-five years. Reust now appeals.

Discussion and Decision I. Sufficiency of Evidence [6] First, Reust argues that the evidence was insufficient to support his conviction

for Level 3 felony possession of a narcotic drug. When reviewing the sufficiency

of the evidence supporting a conviction, we must affirm if the probative

evidence and reasonable inferences drawn therefrom could have allowed a

Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020 Page 3 of 8 reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). It is not our job to reweigh

the evidence or to judge the credibility of the witnesses, and we consider any

conflicting evidence most favorably to the trial court’s ruling. Wright v. State,

828 N.E.2d 904, 906 (Ind. 2005).

[7] To convict Reust of Level 3 felony possession of a narcotic drug, the State was

required to prove beyond a reasonable doubt that Reust, without having a valid

prescription or order, knowingly or intentionally possessed a pure or

adulterated narcotic drug, that the amount of the drug was between ten and

twenty-eight grams, and that an enhancing circumstance applies. I.C. § 35-48-4-

6(a), -6(d)(2). Reust contends that the evidence was insufficient to prove that (1)

he knowingly possessed the narcotics; and (2) the amount of the drug was

between ten and twenty-eight grams.

[8] First, regarding the knowingly element, “[a] person engages in conduct

‘knowingly’ if, when he engages in the conduct, he is aware of a high

probability that he is doing so.” Ind. Code § 35-41-2-2(b). It is undisputed that

when booking Reust, Deputy Sands noticed that Reust “appeared to be

adjusting his pants.” Tr. Vol. III p. 114. Later, during Reust’s strip search,

Deputy Platt asked Reust to turn his head and cough. After two failed attempts,

Reust eventually complied with Deputy Platt’s instructions, which caused

Deputy Platt to notice the end of a plastic baggie sticking out of Reust’s anus.

Later on, Reust admitted to Deputy Jeffers that “when he came to the jail—

Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020 Page 4 of 8 initially came into the jail—that he had brought heroin inside of his butt

checks.” Id. at 150-51.

[9] Based on this evidence, we believe a reasonable factfinder could conclude that

Reust knowingly possessed the narcotics. Not only were the drugs stashed in a

very intimate area over which no other person besides Reust would have had

control, but Reust also confessed to bringing the narcotics with him when he

initially appeared in jail. In other words, it can reasonably be deduced that

Reust was aware of a high probability that he possessed narcotics. Thus, given

Reust’s actions during his arrest, the location of the hidden drugs, and his

confession, we find that the evidence was sufficient to prove the “knowingly”

element.

[10] Next, regarding the amount/weight of the drugs in question, Reust argues that

“it should have been beholden upon the State to prove exactly how much

controlled substance was in the baggie as it is the precise amount of controlled

substance that is indicative of the harm to society that would be inflicted upon it

by the defendant. The State simply failed to do so.” Appellant’s Br. p. 17.

However, the State has done nothing but present uncontroverted evidence that

the narcotics in question weighed 13.55 grams. Reust’s demand that we

reevaluate the narcotics themselves, their amount, and whether the lab report

was credible amounts to nothing more than a request that we reweigh the

evidence, which we may not do. A reasonable trier of fact could have

determined that the amount of the drug in question weighed between ten and

twenty-eight grams based solely on the results from the laboratory report.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020 Page 5 of 8 [11] In sum, the evidence is sufficient.

II. Appropriateness [12] Next, Reust argues that the sentence imposed by the trial court is inappropriate

in light of the nature of the offense and his character.

[13] Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . if,

after due consideration of the trial court’s decision, the Court finds that the

sentence is inappropriate in light of the nature of the offense and the character

of the offender.” The question is not whether another sentence is more

appropriate, but whether the defendant’s specific sentence is inappropriate.

Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). In determining

whether the sentence is inappropriate, we will consider numerous factors such

as culpability of the defendant, the severity of the crime, the damage done to

others, and a “myriad [of] other factors that come to light in a given case.”

Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The defendant bears the

burden of persuading us that his sentence is inappropriate. Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006).

[14] For someone who commits the offense of Level 3 felony possession of a

narcotic drug, the maximum sentence is sixteen years, and the minimum

sentence is three years. Ind. Code § 35-50-2-5(b). The advisory sentence is nine

years. Id. Further, for an habitual offender enhancement as applied to someone

convicted of a Level 3 felony, the trial court may impose an additional fixed

term of between six and twenty years. I.C. § 35-50-2-8(i)(1). Here, the trial court

Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020 Page 6 of 8 imposed a twelve-year term for Reust’s Level 3 felony conviction, with an

additional thirteen years imposed for the habitual offender enhancement, for an

aggregate twenty-five-year term to be served in the DOC.

[15] First, as to the nature of the offense, Reust went to great lengths to conceal

contraband from both Deputies Sands and Platt. Not only did Reust refuse to

comply with Deputy Platt’s instructions the first two times, but he also hid

illegal narcotics in a very invasive and private area of his body. We admit that

the circumstances surrounding Reust’s commission of this crime were not the

most extreme or egregious. But, when considered in tandem of our analysis of

Reust’s character, we find that the nature of the offense does not render Reust’s

sentence inappropriate.

[16] More to that point, as to Reust’s character, Reust has previously been convicted

of possession of marijuana, possession of cocaine, possession of a controlled

substance, dealing in cocaine, operating a vehicle while intoxicated, and

possession of a controlled substance within 1,000 feet of school property.

Additionally, he currently has twenty-three criminal charges pending against

him from four different felony cases. See Bailey v. State, 763 N.E.2d 998, 1004

(Ind. 2002) (holding that a history of criminal activity can reflect poorly on a

defendant’s character at sentencing); see also Rutherford v. State, 866 N.E.2d 867,

874 (Ind. Ct. App. 2007) (holding that “it is appropriate to consider such a

[criminal] record as a poor reflection on the defendant’s character, because it

may reveal that he . . . has not been deterred even after having been subjected to

the police authority of the State[]”). The trial court noted Reust’s serious

Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020 Page 7 of 8 criminal history during sentencing when it said that the “[a]ggravating

circumstances are the substantial volume of [Reust’s] criminal history as well as

the substantial nature of the crimes involved in [Reust’s] criminal history.”

Appealed Order p. 1.

[17] While we recognize that the trial court imposed a sentence for Reust’s Level 3

felony conviction above the advisory sentence, the sheer weight and volume of

Reust’s criminal background—combined with the sobering fact that Reust was

charged with some twenty-three crimes after having been charged with the

current offense—lead us to conclude that Reust’s sentence was not

inappropriate. And the crimes with which Reust was charged all fall into the

realm of criminal drug possession, use, intoxication, or distribution. This

apparent disregard for the rule of law and an unwillingness to rehabilitate his

behavior demonstrate that Reust has no remorse for the damage he has caused

to himself and his surrounding community. Thus, we find that Reust’s

character does not render his sentence inappropriate.

[18] In sum, we will not revise Reust’s sentence pursuant to Indiana Appellate Rule

7(B).

[19] The judgment of the trial court is affirmed.

Bailey, J., and Vaidik, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-729 | July 28, 2020 Page 8 of 8