MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 24 2015, 6:37 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael A. Casati Gregory F. Zoeller Casati Law, LLC Attorney General of Indiana Carmel, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Walter L. Robertson, July 24, 2015
Appellant-Defendant, Court of Appeals Case No. 29A02-1412-CR-851 v. Appeal from the Hamilton Superior Court; The Honorable Wayne A. State of Indiana, Sturtevant, Judge; Appellee-Plaintiff. 29D05-1312-FD-10182
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015 Page 1 of 8 [1] Walter L. Robertson appeals his conviction of Class D felony dealing in
marijuana. 1 Robertson argues his waiver of a jury trial was invalid, the
evidence was insufficient to support his conviction, and his 910-day sentence
was inappropriate. We affirm.
Facts and Procedural History [2] On December 6, 2013, Officers Silbaugh and Brooks stopped the gold Buick
Robertson was driving after they saw it change lanes twice without a turn
signal. Officer Silbaugh approached the vehicle on the driver’s side and Officer
Brooks directed traffic.
[3] On approaching the vehicle, Officer Silbaugh smelled a strong odor of burnt
marijuana coming from the open window. He recognized the odor from his
experience and more than 200 hours of “advanced officer training in the area of
drug enforcement and drug and criminal interdictions.” (Tr. at 23.) Officer
Silbaugh asked Robertson if there was any marijuana in the car. Robertson
acknowledged there was and directed the officer’s attention to a partially
burned marijuana cigarette in the ashtray. Officer Silbaugh removed both
Robertson and his passenger from the car, and proceeded to search it. He
found a clear plastic bag under the driver’s seat that contained two other plastic
bags, each of which contained marijuana. He found $640.00 in cash in
Robertson’s pocket. The money was folded up into a “bindle” held together by
1 Ind. Code 35-48-4-10 (2013).
Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015 Page 2 of 8 rubber bands. (Id. at 39.) Police transported Robertson to the Fishers Police
Department for interrogation.
[4] During the interrogation, Robertson claimed the marijuana was for personal
use and was packaged separately because they were different strains of
marijuana. The Indiana State Police Laboratory tested the material in the bag
and identified it as 30.96 grams of marijuana. Robertson also claimed he had
so much cash because, prior to the arrest, he had cashed his $174.45 paycheck.
Robertson also claimed he had received $50.16 in cash at Walmart for returned
merchandise.
[5] The State charged Robertson with Class D felony dealing in marijuana and
Class D felony possession of more than thirty grams of marijuana. 2 Robertson
did not appear at his pre-trial conference and he was arrested. Robertson filed
two motions for bond reduction, which the court denied. Through counsel,
Robertson waived his right to jury trial. The trial court instructed Robertson’s
counsel to memorialize the waiver in writing and have it signed by both
Robertson and the State.
[6] Following a bench trial, the court found Robertson guilty as charged. At
sentencing, the court merged the two counts into a single conviction of dealing
in marijuana and sentenced Robertson to 910 days.
2 Ind. Code § 35-48-4-11 (2013).
Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015 Page 3 of 8 Discussion and Decision Waiver of Jury Trial
[7] Criminal defendants have a right to a jury trial on their charges. U.S. Const.
amend. VI; Ind. Const. art. I, § 13 (1851). It is presumed felony defendants will
exercise that right unless they choose to waive it. Pryor v. State, 975 N.E.2d 838,
842 (Ind. Ct. App. 2011). A defendant’s waiver must be knowingly,
voluntarily, and intelligently made. Duncan v. State, 975 N.E.2d 838, 842 (Ind.
Ct. App. 2012). Once a defendant has effectively waived his right to a jury trial,
he has no constitutional right to withdraw his waiver. Davidson v. State, 249
Ind. 419, 425 (Ind. 1968).
[8] Robertson argues he did not knowingly, voluntarily and intelligently waive his
right to a jury trial. However, at his bond reduction hearing, Robertson,
through counsel, made a request to waive his right to a jury trial. Robertson’s
counsel stated he and Robertson had discussed the issue, and Robertson
affirmed orally that he wished to waive his right to jury trial. The trial court
instructed Robertson’s counsel to memorialize the waiver in writing and have it
signed by both Robertson and the State. Robertson and his counsel signed a
waiver that indicated Robertson waived his right to a jury trial, and they filed
that waiver with the court. We hold Robertson knowingly, voluntarily, and
intelligently waived his right to a jury trial. See Johnson v. State, 6 N.E.3d 491,
497 (Ind. Ct. App. 2014) (finding waiver of jury trial valid when Johnson’s
attorney signed a waiver indicating that Johnson acted on the advice and
information of counsel when filing his waiver).
Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015 Page 4 of 8 Sufficiency of Evidence
[9] When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the
fact-finder’s role, and not ours, to assess witness credibility and weigh the
evidence to determine whether it is sufficient to support a conviction. Id. To
preserve this structure, when we are confronted with conflicting evidence, we
consider it most favorably to the trial court’s ruling. Id. We affirm a conviction
unless no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt. Id. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence; rather, the evidence is
sufficient if an inference reasonably may be drawn from it to support the trial
court’s decision. Id. at 147.
[10] To convict Robertson of Class D felony dealing in marijuana, the State had to
prove Robertson “possesse[d], with intent to manufacture, finance the
manufacture, deliver, or finance the delivery of marijuana.” Ind. Code § 35-48-
4-10 (2013). Robertson argues the State did not prove he had “intent to . . .
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 24 2015, 6:37 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael A. Casati Gregory F. Zoeller Casati Law, LLC Attorney General of Indiana Carmel, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Walter L. Robertson, July 24, 2015
Appellant-Defendant, Court of Appeals Case No. 29A02-1412-CR-851 v. Appeal from the Hamilton Superior Court; The Honorable Wayne A. State of Indiana, Sturtevant, Judge; Appellee-Plaintiff. 29D05-1312-FD-10182
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015 Page 1 of 8 [1] Walter L. Robertson appeals his conviction of Class D felony dealing in
marijuana. 1 Robertson argues his waiver of a jury trial was invalid, the
evidence was insufficient to support his conviction, and his 910-day sentence
was inappropriate. We affirm.
Facts and Procedural History [2] On December 6, 2013, Officers Silbaugh and Brooks stopped the gold Buick
Robertson was driving after they saw it change lanes twice without a turn
signal. Officer Silbaugh approached the vehicle on the driver’s side and Officer
Brooks directed traffic.
[3] On approaching the vehicle, Officer Silbaugh smelled a strong odor of burnt
marijuana coming from the open window. He recognized the odor from his
experience and more than 200 hours of “advanced officer training in the area of
drug enforcement and drug and criminal interdictions.” (Tr. at 23.) Officer
Silbaugh asked Robertson if there was any marijuana in the car. Robertson
acknowledged there was and directed the officer’s attention to a partially
burned marijuana cigarette in the ashtray. Officer Silbaugh removed both
Robertson and his passenger from the car, and proceeded to search it. He
found a clear plastic bag under the driver’s seat that contained two other plastic
bags, each of which contained marijuana. He found $640.00 in cash in
Robertson’s pocket. The money was folded up into a “bindle” held together by
1 Ind. Code 35-48-4-10 (2013).
Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015 Page 2 of 8 rubber bands. (Id. at 39.) Police transported Robertson to the Fishers Police
Department for interrogation.
[4] During the interrogation, Robertson claimed the marijuana was for personal
use and was packaged separately because they were different strains of
marijuana. The Indiana State Police Laboratory tested the material in the bag
and identified it as 30.96 grams of marijuana. Robertson also claimed he had
so much cash because, prior to the arrest, he had cashed his $174.45 paycheck.
Robertson also claimed he had received $50.16 in cash at Walmart for returned
merchandise.
[5] The State charged Robertson with Class D felony dealing in marijuana and
Class D felony possession of more than thirty grams of marijuana. 2 Robertson
did not appear at his pre-trial conference and he was arrested. Robertson filed
two motions for bond reduction, which the court denied. Through counsel,
Robertson waived his right to jury trial. The trial court instructed Robertson’s
counsel to memorialize the waiver in writing and have it signed by both
Robertson and the State.
[6] Following a bench trial, the court found Robertson guilty as charged. At
sentencing, the court merged the two counts into a single conviction of dealing
in marijuana and sentenced Robertson to 910 days.
2 Ind. Code § 35-48-4-11 (2013).
Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015 Page 3 of 8 Discussion and Decision Waiver of Jury Trial
[7] Criminal defendants have a right to a jury trial on their charges. U.S. Const.
amend. VI; Ind. Const. art. I, § 13 (1851). It is presumed felony defendants will
exercise that right unless they choose to waive it. Pryor v. State, 975 N.E.2d 838,
842 (Ind. Ct. App. 2011). A defendant’s waiver must be knowingly,
voluntarily, and intelligently made. Duncan v. State, 975 N.E.2d 838, 842 (Ind.
Ct. App. 2012). Once a defendant has effectively waived his right to a jury trial,
he has no constitutional right to withdraw his waiver. Davidson v. State, 249
Ind. 419, 425 (Ind. 1968).
[8] Robertson argues he did not knowingly, voluntarily and intelligently waive his
right to a jury trial. However, at his bond reduction hearing, Robertson,
through counsel, made a request to waive his right to a jury trial. Robertson’s
counsel stated he and Robertson had discussed the issue, and Robertson
affirmed orally that he wished to waive his right to jury trial. The trial court
instructed Robertson’s counsel to memorialize the waiver in writing and have it
signed by both Robertson and the State. Robertson and his counsel signed a
waiver that indicated Robertson waived his right to a jury trial, and they filed
that waiver with the court. We hold Robertson knowingly, voluntarily, and
intelligently waived his right to a jury trial. See Johnson v. State, 6 N.E.3d 491,
497 (Ind. Ct. App. 2014) (finding waiver of jury trial valid when Johnson’s
attorney signed a waiver indicating that Johnson acted on the advice and
information of counsel when filing his waiver).
Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015 Page 4 of 8 Sufficiency of Evidence
[9] When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the
fact-finder’s role, and not ours, to assess witness credibility and weigh the
evidence to determine whether it is sufficient to support a conviction. Id. To
preserve this structure, when we are confronted with conflicting evidence, we
consider it most favorably to the trial court’s ruling. Id. We affirm a conviction
unless no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt. Id. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence; rather, the evidence is
sufficient if an inference reasonably may be drawn from it to support the trial
court’s decision. Id. at 147.
[10] To convict Robertson of Class D felony dealing in marijuana, the State had to
prove Robertson “possesse[d], with intent to manufacture, finance the
manufacture, deliver, or finance the delivery of marijuana.” Ind. Code § 35-48-
4-10 (2013). Robertson argues the State did not prove he had “intent to . . .
deliver” marijuana.
[11] Intent to deliver can be inferred from circumstantial evidence such as
“possession of a large quantity of drugs, large amounts of currency, scales,
plastic bags, and other paraphernalia.” Ladd v. State, 710 N.E.2d 188, 191 (Ind.
Ct. App. 1999). An amount of marijuana that exceeds the amount reasonably
Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015 Page 5 of 8 possessed for personal use can alone be sufficient to uphold a conviction of
dealing. Kail v. State, 528 N.E.2d 799, 809 (Ind. Ct. App. 1988) (citing Montego
v. State, 517 N.E.2d 74, 76 (Ind. 1987)).
[12] Robertson possessed nearly thirty-one grams of marijuana, which was packaged
in two different bags. He had $640.00 in cash folded up into a “bindle” held
together by rubber bands. (Tr. at 39.) Even if Robertson had cashed a $174.45
paycheck and returned a $50.16 item at Walmart, that accounts for only
approximately one-third of the cash he was carrying. Officer Silbaugh, who has
had more than 200 hours of “advanced officer training in the area of drug
enforcement and drug and criminal interdictions,” (id. at 23), stated both the
packaging for the marijuana and the binding of money with a rubber band were
consistent with drug sales he had seen in his “hundreds of arrests relating to
marijuana.” (Id. at 46.) There is sufficient evidence of Robertson’s intent to
deliver to support his conviction of dealing. See Wilson v. State, 754 N.E.2d
950, 957-58 (Ind. Ct. App. 2001) (possession of large amount of cash and drugs
packaged for sale permits inference of dealing).
Sentencing
[13] We may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633
(Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider not only
the aggravators and mitigators found by the trial court, but also any other
factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct.
Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015 Page 6 of 8 App. 2007), trans. denied. The appellant bears the burden of demonstrating his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[14] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The
sentencing range for Robertson’s offense was six months to three years, with the
advisory sentence being one and one half years. Ind. Code § 35-50-2-7 (2013).
The court imposed a sentence of 910 days, or nearly two-and-a-half years.
[15] Robertson possessed 30.96 grams of marijuana, an amount that made
Robertson’s possession a felony rather than a misdemeanor. See Ind. Code §
35-48-4-10 (2013). He possessed that marijuana in two baggies in his car, which
smelled of burnt marijuana, “as [if] someone had recently smoked a marijuana
cigarette.” (Tr. at 27.) Robertson acknowledged there was marijuana in the car
and directed the officer’s attention to a partially burned marijuana cigarette in
the ashtray.
[16] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
App. 2007). The significance of a criminal history in assessing a defendant’s
character varies based on the gravity, nature, and number of prior offenses in
relation to the current offense. Id. Robertson has a history of juvenile
adjudications for acts that if committed by an adult would be conversion,
residential entry and conspiracy to commit theft. He was sent to the Indiana
Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015 Page 7 of 8 Department of Correction following those adjudications. He was also
convicted of dealing cocaine in 2002, for which he served time and he was on
probation until 2007. Finally, Robertson was also “arrested for a new drug
offense involving cocaine and marijuana and also a weapons charge while out
on bond in this case.” (Tr. at 121.) Robertson’s continued criminal behavior
despite prior punishment in the criminal justice system does not reflect well on
his character.
[17] Based on Robertson’s character, we cannot say his 910-day sentence is
inappropriate.
Conclusion [18] Robertson knowingly, voluntarily and intelligently waived his right to a jury
trial. There was sufficient evidence to support Robertson’s conviction of
dealing in marijuana. Based on Robertson’s character, his 910-day sentence
was not inappropriate. We accordingly affirm.
[19] Affirmed.
Robb, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 29A02-1412-CR-851 | July 24, 2015 Page 8 of 8