MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 22 2019, 8:41 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana
Henry A. Flores, Jr. Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert M. Judd, May 22, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3001 v. Appeal from the Dearborn Circuit Court State of Indiana, The Honorable James D. Appellee-Plaintiff. Humphrey, Judge
Trial Court Cause No. 15C01-1806-F4-10
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019 Page 1 of 6 Case Summary [1] Around midnight on May 29, 2018, police encountered Robert Judd as he
attempted to break into a vacant home. At the time, Judd was in possession of
methamphetamine and a syringe. He was subsequently convicted of Level 5
felony dealing in methamphetamine and Level 6 felony possession of a syringe
and was found to be a habitual offender. The trial court sentenced Judd to six
years and enhanced his sentence by an additional six years by virtue of his
status as a habitual offender. Judd contends on appeal that his aggregate
twelve-year sentence is inappropriate. Concluding otherwise, we affirm.
Facts and Procedural History [2] Around midnight on May 29, 2018, Lawrenceburg Police Officers Bill Lynam
and Troy Cochran were dispatched to investigate two individuals who were
attempting to break into a vacant home. Upon arriving at the home, they
encountered Judd and Samantha Duffy. Officer Lynam asked to see Judd’s
identification and Judd indicated that it was in his nearby vehicle. As Judd was
rummaging around the vehicle, Officer Lynam observed a syringe on the
driver’s-side floorboard, which Judd attempted to push out of view. Judd was
then placed under arrest.
[3] During a search incident to Judd’s arrest, Officers Lynam and Cochran
recovered a plastic bag from Judd’s front pocket. The bag held two additional
baggies “containing a crystal type substance” which given his training and
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019 Page 2 of 6 experience as a police officer, Officer Lynam knew to be “consistent with
methamphetamine.” Tr. Vol. I p. 46. The outer bag contained .03 grams of
methamphetamine and the two additional baggies each contained .37 grams of
methamphetamine.1 The officers also recovered a jeweler’s bag containing
“cigarette cellophane” and a “ripped corner of a plastic baggie” and a cellular
telephone from Judd. Tr. Vol. I p. 112. The officers requested and were
granted a warrant allowing them to search Judd’s telephone. In doing so, the
Officers reviewed text messages which indicated that Judd was active in dealing
drugs. For example, in one exchange Duff asked Judd to sell her twenty
dollars’ worth of methamphetamine. Judd subsequently admitted that he “gave
[Duff] the dope” during a monitored phone call from jail. Tr. Vol. I p. 165.
[4] The State charged Judd with Count I – Level 4 felony dealing in
methamphetamine, Count II – Level 5 felony dealing in methamphetamine,
Count III – Level 6 felony possession of methamphetamine, and Count IV –
Level 6 felony possession of a syringe. The State also alleged that Judd is a
habitual offender. Following trial, a jury found Judd guilty of Counts II
through IV, but not guilty of Count I. The jury also found Judd to be a habitual
offender.
1 Despite the fact that technicians only tested the substance found in one of the additional baggies, one may reasonably infer that both of the additional baggies contained methamphetamine given that the substances in the baggies “were visually consistent with one another” and were divided into equal amounts. Tr. Vol. I p. 79.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019 Page 3 of 6 [5] On November 13, 2018, the trial court sentenced Judd to six years on Count II,
merged Count III into Count II, and sentenced Judd to two years on Count IV.
The trial court indicated that the sentence for Count IV would run “concurrent
with Count II.” Appellant’s App. Vol. III p. 182. The trial court further
ordered that Judd “shall receive an enhancement of six (6) years which shall
attach to Count II,” for an aggregate sentence of twelve years. Appellant’s
App. Vol. III p. 182.
Discussion and Decision [6] Judd contends that his aggregate twelve-year sentence is inappropriate in light
of the nature of his offense and his character. Indiana Appellate Rule 7(B)
provides that “The Court may revise a sentence authorized by statute 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.” In analyzing such claims, we “concentrate less on comparing the
facts of [the case at issue] to others, whether real or hypothetical, and more on
focusing on the nature, extent, and depravity of the offense for which the
defendant is being sentenced, and what it reveals about the defendant’s
character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (internal
quotation omitted). The defendant bears the burden of persuading us that his
sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App.
2008).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019 Page 4 of 6 [7] Judd argues that his sentence is inappropriate with respect to the nature of his
offenses because he only possessed a small amount of drugs and one of the prior
convictions used to prove that he is a habitual offender was a Level 6 felony.
At the time of his arrest, Judd possessed .77 grams of methamphetamine. Of
this, .74 grams were packaged into two equal parts in a manner consistent with
the sale of drugs. Text messages on Judd’s telephone indicated not only that he
was active in the sale of drugs, but also that he was actively attempting to
acquire more drugs. In addition, when selling methamphetamine to Duffy, he
also provided her with a syringe with which she could inject the
methamphetamine into her system.2 We believe that possession of drugs for the
purpose of selling said drugs to others is a serious offense, especially
considering that Judd also provided his buyers with the means by which they
could ingest the drugs.
[8] As for Judd’s argument relating to the habitual offender finding, while one of
the underlying convictions relied on by the State was a Level 6 felony, the other
was a Class B felony. Indiana Code section 35-50-2-8(c) provides that “a
person convicted of a Level 5 felony is a habitual offender if the state proves …
that the person has been convicted of two (2) prior unrelated felonies” and “at
least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D
felony[.]” The convictions relied upon by the State satisfy Indiana Code section
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 22 2019, 8:41 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana
Henry A. Flores, Jr. Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert M. Judd, May 22, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3001 v. Appeal from the Dearborn Circuit Court State of Indiana, The Honorable James D. Appellee-Plaintiff. Humphrey, Judge
Trial Court Cause No. 15C01-1806-F4-10
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019 Page 1 of 6 Case Summary [1] Around midnight on May 29, 2018, police encountered Robert Judd as he
attempted to break into a vacant home. At the time, Judd was in possession of
methamphetamine and a syringe. He was subsequently convicted of Level 5
felony dealing in methamphetamine and Level 6 felony possession of a syringe
and was found to be a habitual offender. The trial court sentenced Judd to six
years and enhanced his sentence by an additional six years by virtue of his
status as a habitual offender. Judd contends on appeal that his aggregate
twelve-year sentence is inappropriate. Concluding otherwise, we affirm.
Facts and Procedural History [2] Around midnight on May 29, 2018, Lawrenceburg Police Officers Bill Lynam
and Troy Cochran were dispatched to investigate two individuals who were
attempting to break into a vacant home. Upon arriving at the home, they
encountered Judd and Samantha Duffy. Officer Lynam asked to see Judd’s
identification and Judd indicated that it was in his nearby vehicle. As Judd was
rummaging around the vehicle, Officer Lynam observed a syringe on the
driver’s-side floorboard, which Judd attempted to push out of view. Judd was
then placed under arrest.
[3] During a search incident to Judd’s arrest, Officers Lynam and Cochran
recovered a plastic bag from Judd’s front pocket. The bag held two additional
baggies “containing a crystal type substance” which given his training and
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019 Page 2 of 6 experience as a police officer, Officer Lynam knew to be “consistent with
methamphetamine.” Tr. Vol. I p. 46. The outer bag contained .03 grams of
methamphetamine and the two additional baggies each contained .37 grams of
methamphetamine.1 The officers also recovered a jeweler’s bag containing
“cigarette cellophane” and a “ripped corner of a plastic baggie” and a cellular
telephone from Judd. Tr. Vol. I p. 112. The officers requested and were
granted a warrant allowing them to search Judd’s telephone. In doing so, the
Officers reviewed text messages which indicated that Judd was active in dealing
drugs. For example, in one exchange Duff asked Judd to sell her twenty
dollars’ worth of methamphetamine. Judd subsequently admitted that he “gave
[Duff] the dope” during a monitored phone call from jail. Tr. Vol. I p. 165.
[4] The State charged Judd with Count I – Level 4 felony dealing in
methamphetamine, Count II – Level 5 felony dealing in methamphetamine,
Count III – Level 6 felony possession of methamphetamine, and Count IV –
Level 6 felony possession of a syringe. The State also alleged that Judd is a
habitual offender. Following trial, a jury found Judd guilty of Counts II
through IV, but not guilty of Count I. The jury also found Judd to be a habitual
offender.
1 Despite the fact that technicians only tested the substance found in one of the additional baggies, one may reasonably infer that both of the additional baggies contained methamphetamine given that the substances in the baggies “were visually consistent with one another” and were divided into equal amounts. Tr. Vol. I p. 79.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019 Page 3 of 6 [5] On November 13, 2018, the trial court sentenced Judd to six years on Count II,
merged Count III into Count II, and sentenced Judd to two years on Count IV.
The trial court indicated that the sentence for Count IV would run “concurrent
with Count II.” Appellant’s App. Vol. III p. 182. The trial court further
ordered that Judd “shall receive an enhancement of six (6) years which shall
attach to Count II,” for an aggregate sentence of twelve years. Appellant’s
App. Vol. III p. 182.
Discussion and Decision [6] Judd contends that his aggregate twelve-year sentence is inappropriate in light
of the nature of his offense and his character. Indiana Appellate Rule 7(B)
provides that “The Court may revise a sentence authorized by statute 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.” In analyzing such claims, we “concentrate less on comparing the
facts of [the case at issue] to others, whether real or hypothetical, and more on
focusing on the nature, extent, and depravity of the offense for which the
defendant is being sentenced, and what it reveals about the defendant’s
character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (internal
quotation omitted). The defendant bears the burden of persuading us that his
sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App.
2008).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019 Page 4 of 6 [7] Judd argues that his sentence is inappropriate with respect to the nature of his
offenses because he only possessed a small amount of drugs and one of the prior
convictions used to prove that he is a habitual offender was a Level 6 felony.
At the time of his arrest, Judd possessed .77 grams of methamphetamine. Of
this, .74 grams were packaged into two equal parts in a manner consistent with
the sale of drugs. Text messages on Judd’s telephone indicated not only that he
was active in the sale of drugs, but also that he was actively attempting to
acquire more drugs. In addition, when selling methamphetamine to Duffy, he
also provided her with a syringe with which she could inject the
methamphetamine into her system.2 We believe that possession of drugs for the
purpose of selling said drugs to others is a serious offense, especially
considering that Judd also provided his buyers with the means by which they
could ingest the drugs.
[8] As for Judd’s argument relating to the habitual offender finding, while one of
the underlying convictions relied on by the State was a Level 6 felony, the other
was a Class B felony. Indiana Code section 35-50-2-8(c) provides that “a
person convicted of a Level 5 felony is a habitual offender if the state proves …
that the person has been convicted of two (2) prior unrelated felonies” and “at
least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D
felony[.]” The convictions relied upon by the State satisfy Indiana Code section
35-50-2-8(c) and we cannot say that Judd’s status as a habitual offender is not
2 This syringe is in addition to the syringe found in Judd’s vehicle.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019 Page 5 of 6 egregious simply because one of the underlying felonies relied on by the State
was a Level 6 felony.
[9] Judd’s character also fully justifies his sentence. Judd’s actions and criminal
history demonstrate a disregard for the law. His “history of bad behavior began
in juvenile court when he was fourteen (14) years old, and he is now thirty-four
(34).” Tr. Vol. II p. 57. As an adult, he has accumulated four prior felony
convictions, five prior misdemeanor convictions, and four probation violations.
His convictions range from drug possession to violent offenses such as battery
and robbery resulting in bodily injury. Judd has failed to reform his behavior as
is evidenced by the fact that he was released from incarceration for one of these
prior convictions a mere forty-seven days before committing the instant
offenses. Judd is also considered “very high” risk to reoffend. Appellant’s App.
Vol. III p. 158. In addition, Judd has continued to show himself to be of poor
character while incarcerated in the Dearborn County Law Enforcement Center
during the pendency of this case. For instance, on October 17, 2018, Judd
defaced jail property by writing a vulgar comment directed at a female officer
on a window in the recreation area of the jail. Judd has failed to persuade us
that his sentence is inappropriate. See Sanchez, 891 N.E.2d at 176.
[10] The judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3001 | May 22, 2019 Page 6 of 6